EASEMENTS

The Webster Dictionary defines an easement as: an interest in land owned by another that entitles its holder to a specific limited use or enjoyment.

An easement is different from a right of way, a right away is for public use where as an easement is for private use.

 In Texas easements are a nonpossessory interest in land.  An easement holder has the right to use a tract of land for a specific use only and does not own or have full us of this land.  Most easements are established to give someone a right of access across a specific piece of land owned by another.

In Texas there is a variety of easement types.  The basis of these are agreements between a landowner and the holder of the easement.

The five common easements are; Easement by necessity, easement by prescription, easement by condemnation, easement by implication, and easement by conservation.

Easement by necessity:   if a property owner does not have access to their property, from a public road they can either have an owner of an adjoining property provide them an easement to allow them to have access to their land.  If this is unsuccessful, they can patrician a court to grant them an access easement for a road over the adjoining land so that they have access to their property.  To be awarded an easement by necessity property must prove that their land was once a part of the parcel that needs to be crossed.  Many times, if that cannot be done the property becomes landlocked.

In some situations, an easement of necessity may be granted so that a landowner has access to a water source.

Easement by prescription:  if a person has used land, owned by an adjoining land owner, for over ten (10) years a prescriptive easement can be created.  The use of the land must have been:

• Open and notorious
• Continuous
• Exclusive
• Adverse (use without permission)

In most case this situation was not on purpose.  The landowner and the person using the land failed to realize to whom the land belonged.

Easement by condemnation:  condemnation in land takes place when a government agency strives to take property of a private owner.  Many people believe that Eminent Domain andCondemnation are interchangeable.

• Eminent Domain is the inherent right of the government to take private property for public use. Private entities may also have the power of eminent domain if allowed by law and if their projects are considered a public use.
• Condemnation is the legal process and procedure that is used by public or private parties with the power of eminent domain for the taking of a landowner’s property. Both the US Constitution and the Texas Constitution provides for and guarantees that the property owner will receive just compensation.  When an agreement cannot be on compensation the just compensation is determined judicially by the condemnation process established by law.

If a project is not for legitimate public use, then the project could be stopped.  If a landowner is facing a condemnation proceeding it is critical that they consult with a Texas Eminent Domain Attorney who can help guide them through the process.

Easement by implication:  an implied easement is one that is not written down.  Texas has two kinds of implied easements necessity easements and prior use easements.

• Necessity easements usually apply to a roadway to landlock property that was once united with the parcel of land effected by the easement. This is a temporary easement and ceases when the necessity comes to an end
• Prior use easements are granted based on the previous use of land for a specific purpose. The grantee must prove that they were previously given permission to use the land for an identifiable purpose.

Easement by conservation:  conservation easements were created to assist a landowner with protecting farm/ranch land, wildlife habitat, a scenic vista or historical buildings.  It is executed by a written agreement between the land owner and the holder of the conservation easement.  The landowner voluntarily restricts defined uses of the property.  The landowner continues to own the land and determines what uses to continue and which to restrict.  The holder of the conservation easement has the legal right to assess the condition of the property, usually annually to make sure that it is being maintained as according to the terms of the agreement.  There are usually two reasons that a landowners have interest in a conservation easement:

• Landowners want to protect the natural and productive qualities of their land. These include soil, trees, wildflowers, wildlife and history in the present and after ownership has transferred to another.
• In Texas, conservation easements are usually donated to non-profit land trust. Conservation easements are recognized for legal and tax purposed by the State of Texas under chapter 183, Texas Natural Resources Code and by the Internal Revenue Service, under the Internal Revenue Code, Section 170(h).  These laws provide tax benefits to the landowner.

One important thing to be aware of is that most conservation easements are permanent and binding to all future landowners.  These easements can reduce the property’s overall value.

To protect all parties easements should be put in writing.  Having all conditions of the agreement should be included in a document, signed by all parties involved, and recorded in the county deed records.  This will protect both the servient and the dominate estate owners’ rights.

Ranch Connection is a full service Land and Ranch Real Estate Brokerage established in 1984.