Before discussing landowner options in detail, however, we need to first define terms that will commonly be used throughout this article and provide an explanation on why legal access is necessary.
Beyond convenience to a landlocked landowner, obtaining legal right to access a public road is necessary in order to preserve access rights of the landlocked landowner and future owners of the land. Reliance on oral permission is not enough to establish legal right of access. Without written documentation of the legal right of access, landlocked landowners will be limited in their ability to sell the property and/or obtain a loan using the landlocked property as collateral. Title companies generally will not insure title to property that lacks legal access. In addition, lenders typically will not accept as collateral land that does not have legal right to access a public road.
Options of a Landlocked Landowner
Unfortunately, not all land subdivisions like the conveyance from Amanda to Bert include the grant of an access easement. In those instances, landowners of landlocked properties should consider the following options for obtaining an access to a public road:
Each of these options will be discussed in detail, with today’s article covering the first option.
If a deed conveying landlocked property does not include the grant of an access easement or if a separate access easement agreement is not signed and recorded with the vesting deed, a landowner of landlocked property should first seek the option of obtaining an express easement from the conveying landowner or from another adjacent landowner. An express easement is a grant by the servient estate owner giving the dominant estate owner permission to use the servient estate owner’s land for a particular purpose. This type of easement should always: (a) be in writing, (b) identify by legal description the servient estate, the dominant estate, and the easement area, (c) state the purpose of the easement and any maintenance obligations, (d) be signed by the servient estate owner, and (e) be recorded in the real property records of the county where the property is located.
Going back to the original example, if Amanda did not grant to Bert an easement for accessing the public road in either the deed conveying Tract B to Bert or in a separate easement agreement signed and recorded with the deed, then Bert can later ask Amanda for an express access easement. If Amanda agrees, Bert (or Amanda) should hire a local real estate attorney to draft an easement agreement that (a) identifies Tract A, Tract B, and the easement tract, (b) states that the purpose of the easement is for access to and from Tract B to and from a specific public road, (c) identifies which party is responsible for maintenance of the easement area, (d) is signed by Amanda, and (e) is recorded in the real property records of the county where the land is located.
If, however, Amanda or a later owner of Tract A is not cooperative in granting an access easement to Bert, he can ask a neighboring property owner with access to a public road to grant him an easement across their property for access to and from the public road. The same procedure set forth above should be followed by the parties.
No, but a Texas landowner has options for obtaining an easement to access their landlocked property. This explanation will be discussed as a three-part series, with today’s article addressing Part Two. If you missed Part One, click here: https://www.mgmpllc.com/blog/is-my-property-landlocked-part-1
If private negotiations for obtaining an express access easement fail, the next option for a landlocked property owner to obtain an access easement is through an implied easement.
An implied easement is an easement created by law and does not require agreement by the servient estate owner. Certain requirements must be met for the law to imply an easement.
The following procedure must be followed to obtain an implied easement: (a) file suit in the appropriate court asking for court determination of a specific implied easement, (b) prove all required elements of the implied easement sought, (c) obtain a court order declaring the implied easement, and (d) file the court order declaring the implied easement in the real property records of the county where the property is located.
One downfall of implied easements is that court action must determine the existence of an implied easement. As such, legal fees and court costs are usually higher than the express easement approach.
The following is a discussion of three types of implied easements, each of which may apply to a situation in which an access easement is sought.
An access easement by implication arises without express written reservation when the use is necessary. Texas law recognizes that a use is “necessary” when one tract of land is subdivided and one of the resulting tracts lacks access to a public road at the time of the subdivision. The landlocked property owner seeking court declaration of an implied access easement by necessity must prove to the court these three elements: (i) unity of ownership of the servient and dominant estates before severance (i.e., the dominant estate and the servient estate were owned by the same person before subdivision of the property into two or more tracts of land), (ii) that an access easement is necessary, and not merely convenient, over the servient estate, and (iii) that an access easement was necessary when the land was subdivided.
Let’s apply the elements of an easement by necessity to our original example of Amanda and Bert. Bert, the landlocked landowner, would need to prove to the court that (i) Tract B was owned in common with Tract A as a larger 100 acre tract of land, (ii) Tract B lacks access to a public road, and therefore an access easement is necessary over Tract A for Bert to have access to a public road, and (iii) when Amanda subdivided the 100 acre tract of land and conveyed Tract B to Bert, Tract B lacked access to a public road. Applying the facts to the required elements of an access easement by necessity, a court would likely declare an access easement across Tract A for Tract B.
An access easement by estoppel arises without express written reservation when a landowner makes a representation that an access easement exists, whether by oral communication or action, and a person then acts in reliance on that representation. The landlocked property owner seeking court declaration of an access easement by estoppel must prove to the court these three elements: (i) communication of a representation through word or action, (ii) belief in the representation by the promisee, and (iii) reliance on the representation by the promisee.
In the original example of Amanda and Bert, let’s assume that instead of including the grant of an access easement in the vesting deed conveying Tract B to Bert, Amanda merely told Bert before such conveyance that Bert would have an access easement over a particular driveway on Tract A to access the public road adjacent to Tract A. Noticing that Tract B was otherwise landlocked, Bert still purchased Tract B from Amanda because she told him he would have an access easement across the driveway on Tract A. Bert built a home on Tract B and used the driveway across Tract A for access to and from the public road. Two weeks later, Amanda told Bert to stop using the driveway and that he could not cross Tract A to access the public road. Amanda will be estopped from denying the existence of an access easement across Tract A for use by Bert as access between Tract B and the public road adjacent to Tract A if Bert proves to the court: (i) Amanda told Bert he could use the driveway for access between Tract B and the public road, (ii) Bert believed what Amanda told him regarding use of the driveway, and (iii) Bert purchased Tract B from Amanda and subsequently built a home on Tract B because he relied on Amanda’s statement that he could use the driveway for access. Applying the facts to the required elements of an access easement by estoppel, a court would likely declare an access easement across Tract A for Tract B.
A prescriptive easement arises absent an express written reservation in a situation similar to obtaining ownership of a tract of land by adverse possession. To obtain an access easement by prescription, a landlocked property owner must prove to the court that their use has been (i) open, (ii) notorious, (iii) continuous, (iv) exclusive, (v) adverse, and (vi) for a period of at least 10 years. Prescriptive easements are generally disfavored by courts, and failure to prove each element is fatal to the court’s declaration of a prescriptive access easement. The elements of a prescriptive access easement are described below.
To satisfy the elements of “open” and “notorious”, the claimant must have actually used the easement property in a manner visible enough to give the property owner notice of such use. The claimant’s use of the easement property must also have been continuous for a period of at least 10 years. These elements do not require constant use, and seasonal use over a period of at least 10 years will establish continuous use.
The more difficult elements to prove of a prescriptive access easement are “exclusive” and “adverse”. To prove the “exclusive” element, the claimant must have been the sole user of the easement property. If the property owner also used the easement area for access, then this element will not be satisfied. The “adverse” element requires that the claimant prove that the property owner did not permit the claimant’s use of the property, and that the claimant used the property in a hostile manner.
Returning to our original example of Amanda and Bert, these facts would have to exist for Bert to prevail on a prescriptive access easement claim: (i) Bert openly and visibly used the driveway area on Tract A for access between Tract B and the public road; (ii) Bert’s use of the driveway was continuous for at least 10 years; (iii) neither Amanda nor any other person used the driveway area on Tract A; and (iv) Amanda did not give Bert permission to use the driveway area on Tract A, and Bert hostilely used the area. A “hostile” use may include Bert fencing and gating the easement area on Tract A or ignoring “no trespassing” signs posted by Amanda on Tract A near the driveway area. Given the facts that must exist to establish a prescriptive access easement, Bert likely would not prevail on a prescriptive access easement claim.
If private negotiations for obtaining an express access easement fail and a claimant does not prevail in court on an implied easement claim, the third and final option for a landlocked property owner to obtain legal access to a public road is by statute.
Under the Texas Transportation Code, a landowner can ask a commissioners court to declare and build a public road when no public access exists. Specifically, Section 251.053 of the Texas Transportation Code provides, “A person who owns real property to which there is no public road or other public means of access may request that an access road be established connecting the person’s real property to the county public road system by making a sworn application to the commissioners court requesting the court to establish the road.”
The procedures for seeking declaration of a public road under the Texas Transportation Code are:
There is a common misconception that landowners of landlocked property in Texas have an automatic access easement to and from their property across private lands of others to access public roads. Texas law does not provide an “automatic” easement, but landlocked landowners in Texas have multiple options for obtaining legal right to access their property. To recap, those options are:
It is imperative for landowners of landlocked property to obtain legal right to access a public road for the following reasons:
If you have landlocked property in Texas or if you have questions about this article or easements in general, contact the trusted and experienced attorneys at Moore Ganske Murr pllc. We represent Texas landowners in obtaining legal rights of access between their property and public roads.
Stephen K. Ganske is a real estate and business lawyer at the Texas Horizons Law Group.