This blog was adapted from a FAQ written by Sean Clemmensen, President and General Counsel, Tiago Title LLC
Why Easements Matter in Texas Real Estate
Easements play a major role in shaping the value, use, and marketability of real property in Texas. They determine who has the legal right to access or use part of a property. For buyers, sellers, and investors, understanding easements is essential because they can affect:
- Access to public roads
- Utility installation and maintenance
- Shared driveways or private roads
- Development potential and fencing
- Potential legal disputes
For Texas real estate agents, knowing how to identify and explain easements is critical in protecting clients’ interests.
What Is an Easement?
An easement is a non-possessory interest in land that grants someone the right to use another person’s property for a specific purpose. Easements do not transfer ownership but create a legal right to use the property in a limited way.
Examples of common easements include:
- Driveway access for a neighboring property
- Utility lines, pipelines, and drainage
- Shared private roads
Easements can increase or restrict how a property may be used, and in many cases, they are enforceable by court order.
Types of Easements Recognized Under Texas Law
1. Express Easement
An express easement is created through a written, legally executed document. For it to be valid, it must:
- Be in writing and signed by the party granting the easement
- Clearly state the intent to create the easement
- Contain an adequate legal description
- Be properly acknowledged and delivered
- Be recorded, if required
Reference: Pick v. Bartel, 659 S.W.2d 636 (Tex. 1983).
2. Prescriptive Easement
A prescriptive easement arises when someone gains access through prolonged, unauthorized use of land. To prove it, the claimant must show:
- Adverse, open, and notorious use
- Exclusive use (not public or shared)
- Continuous use for at least 10 years
Unlike adverse possession, prescriptive easements do not transfer title only the right to continued use.
3. Easement by Estoppel
An easement by estoppel occurs when a landowner leads another party to reasonably rely on an easement right, often through a verbal promise. To succeed, the claimant must prove:
- The landowner made a representation of easement rights
- The claimant relied on that promise in good faith
- The claimant suffered a detriment due to reliance
This is often used when access is revoked after the claimant has made improvements.
4. Implied Easement (By Prior Use)
Courts may recognize an implied easement when long-standing use shows an intent for access, even without a written agreement. To prove this, the claimant must show:
- Unity of ownership before division of the land
- Continuous, apparent use at the time of division
- That the easement is reasonably necessary to enjoy the dominant estate
5. Easement by Necessity
This type arises when a property becomes landlocked after subdivision. To prove necessity, a claimant must show:
- Unity of ownership before division
- Strict necessity (not just convenience)
- Necessity existed when the land was divided
This usually applies when a parcel has no access to a public road and no other alternative exists.
Practice Tips for Texas Real Estate Agents
- Always review the title commitment (Schedule B) for recorded easements.
- Order and examine a survey to identify visible or recorded easements.
- Advise clients carefully on shared driveways, access rights, or unrecorded easements.
- Encourage buyers and sellers to seek legal counsel when easements are involved.
Final Thoughts
Easements in Texas real estate can significantly impact a property’s use, value, and accessibility. By understanding the different types … express, prescriptive, estoppel, implied, and necessity—agents can better guide their clients and avoid costly surprises during transactions.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Always consult a licensed Texas attorney for guidance on easements or related disputes.
Make certain to check out Texas Mineral Rights written by Sean Clemmensen.
