As a land owner it is important to understand the politics and specifics regarding easements and how they might affect your land. Below is a summary from an article published by the Texas A&M Real Estate Center:
Many people believe if you own land in Texas you have the unquestionable legal right to access it. Nothing could be further from the truth. As Texas’s population increases and land becomes more and more fragmented, landlocked property becomes more prevalent. Understanding easements is critical if access depends on one.
• As large tracts in Texas are broken into smaller properties, landlocked properties increase. Before purchasing land, buyers should investigate whether easements exist and, if so, what type of easements.
• Appurtenant easements attach to the property and benefit the buyer and subsequent owners.
• An easement in gross attaches to the person who receives it and may stay with that person even if ownership of the land changes.
• If an easement exists or will be created to access the property, get an attorney to determine whether the easement is appurtenant or in gross. An easement in gross will not benefit the new owner unless it can be (and is) assigned.
• Likewise, have the attorney determine whether any impediments such as gates or cattleguards may be constructed at the entry or across the easement. This depends on the intent of the parties. Some courts determine intent solely from the wording in the easement. Others examine the four factors described in McDaniel.
• If the language is ambiguous or uncertain, the resolution of the issue will be against the servient estate (the tract being crossed) in favor of the dominant estate.
• As a general rule, the servient estate cannot interfere with the rights of the dominant estate to use the easement for the purpose for which it was granted, unless specifically limited.
• Only the owners of the land described as the dominant estate(s) in the appurtenant easement may use it for access. If you are purchasing land that has a recorded easement, but the tract or tracts being purchased are not described as a dominant estate, the property may be landlocked.
• If an unauthorized use of the easement has occurred or is occurring at the time of the purchase, make sure the statutes of limitation have not expired to remedy the infraction. Likewise, make sure an assignment of the right to cure the infraction judicially is conveyed to the purchaser.
