An Introductory Discussion of Easements


If you own land in the State of Texas, chances are you have an easement on your property. Easements typically grant another person, or entity, a limited right to enter upon and use another's property for a specific purpose in a specific location. While the property owner still owns the land on which the easement is located, the property owner is often times restricted from using his/her land in any way that could interfere with the easement holder's use of the same.

Easements come in many forms. A pipeline easement may grant a pipeline company the right to lay and maintain a pipeline on someone's property; an access easement may grant a neighbor the right to drive or walk across an adjacent property for the purposes of accessing their own property; or a public utility easement may allow utility companies the right to lay and maintain water, phone, electrical, or fiber optic lines.

I. What Is an Easement?

An easement is a non-exclusive non-possessory property interest under which the owner of the easement has certain and limited rights to use or benefit from land owned by another and may only exclude others from said property if they interfere with the easement holder's use of the same.

Land burdened by an easement is called the "Servient Estate," while the land or person benefited by the easement is known as the "Dominant Estate."

II. Types of Easements

Depending on the nature of the dominant estate (the holder of the easement), the easement can take two forms:

  1. Easement Appurtenant: If the easement benefits a specific piece of land (typically an adjoining property, but not necessarily) the easement is said to be "APPURTENANT." Easements appurtenant are affixed to the land itself and will pass to subsequent owners of the property without any specific assignment.
  2. Easement in Gross: If the easement does not benefit a particular piece of land, but rather a person or entity, the easement is said to be "IN GROSS." Easements in gross are typically non-transferable or assignable unless specified in the easement document or consented to by the owner of the servient estate.

EXAMPLE #1: Property B (Dominant Estate) has an easement across Property A (Servient Estate) granting a right of access to Property B (e.g. a driveway). If the above access easement was created at the time Property B was severed from Property A, for the purposes of allowing access to Property B (typically when landlocked), the access easement is an easement appurtenant. If Property B is not landlocked and the access easement was granted by the owner of Property A to allow a specific person or entity a right of access across Property A for the purposes of gaining entry to Property B, the easement may be an easement in gross.

c) Within the confines of the aforementioned easement types, there are AFFIRMATIVE EASEMENTS, NEGATIVE/RESTRICTIVE EASEMENTS, PRIVATE EASEMENTS, and PUBLIC EASEMENTS.

i) Affirmative easements (most common): An affirmative easement grants the holder of the easement the right to "do something" on another's property. In the scope of Example No. 1, the access easement is an affirmative easement.

ii) Negative easements or restrictive easements (less common): A negative easement or restrictive easement prevents the owner of the servient estate from "doing something." Conservation easements, which preserve natural areas by prohibiting development, are a common example of a negative easement.

iii) Private easement: A private easement is typically owned or held by one or a limited number of persons or parties.

iv) Public easement: A Public easement is one that benefits or grants the rights under the easement to a large group of individuals or the public in general.

III. The Granting of an Easement – EXPRESS EASEMENTS:

Primarily all easements we encounter on a day to day basis are known as EXPRESS EASEMENTS. Express easements are essentially contracts entered into between the owners of the dominant and servient estates outlining the terms by which the owner of the dominant estate may utilize the servient estate for the benefit of the dominant estate.

Express easements are commonly created in one of three ways:

  1. Granted by a deed;
  2. Reserved by a deed; or
  3. Created in another legal instrument, such as a specific easement dedication, identified within a subdivision plat, or identified within a recorded set of subdivision restrictions.

Because express easements are contracts governing the use of real property, express easements are subject to the basic principles of contract construction, the Statue of Frauds, and Deed Formalities.

a) Statute of Frauds (Except for one < 1yr.): In Texas, all conveyances of interests in real property are subject to the Statute of Frauds, which, simply put, requires the conveyance to be declared in writing for it to be legally binding on the parties.

Definition of Statute of Frauds: No estate of inheritance or freehold, or for a term of more than one year, in lands and tenements, shall be conveyed from one to another, unless the conveyance is declared in writing.

b) Deed Formalities: The deed or instrument conveying the property or easement must be signed and notarized. Furthermore, in order for the instrument to be binding on subsequent purchasers of the dominant and servient estates, the instrument must be recorded in the county where the servient estate is located. While an unrecorded easement may still be enforceable, the easement may be nullified by a "bona fide purchaser" of the property if the property is sold for value and the subsequent purchaser has no notice (constructive or otherwise) of the unrecorded easement.

If an easement agreement abides by the aforementioned requirements, the rights of all parties to the agreement are typically secure. However, issues can arise after the owners of property agree to an easement if, at the time the easement is created, the parties either fail to reduce the agreement to writing and/or fail to record that writing after its execution. This issue brings up the discussion of how can an easement be enforced or defended if it has not been reduced to writing or properly recorded. In such cases, oftentimes, Courts must decide whether an enforceable easement exists under the principles of an (1) Implied Easement, (2) Prescriptive Easement, (3) or Easement by Estoppel; the discussion of which, however, is beyond the scope of this discussion.

DISCLAIMER: The foregoing information is not legal advice and is general in nature and not applicable to all situations. The reader should not rely on these general statements and should consult with knowledgeable persons before taking any actions.