All You Need to Know About Easements and Rights of Way in Texas

An easement is a legal agreement where a landowner grants permission to someone else to use his or her land. A person or an organization may get legal permission to use part of the landowner’s property for a specific purpose.

The land on which an easement is granted is called the ‘servient estate,’ and the easement benefits go to a ‘dominant estate.’

An easement does not allow anyone but the property owner to profit from the land. Moreover, it is the duty of the person to whom an easement has been granted to care for the property and to maintain the easement unless otherwise modified by the parties. Easements allow the other person (who is not the landowner) to use the piece of land and also protect that person from interference in the use of the easement.

But in the case of mineral rights, those remain with the landowner and are not granted with the easement.

Generally, there are two categories of easements: Express and Implied

Express Easements

An express easement is agreeably granted by the servient estate owner, and the terms of this kind of easement are governed by the language creating the easement, and not by the actions of the parties. Therefore, it’s imperative that landowners granting an express easement should be careful of the exact wording included in the granting document. The rights of both the dominant and servient estates can be significantly impacted by verbal usage. Such easements should always be summarized in writing and should be recorded in the county deed records.

Implied Easements

An implied easement, on the other hand, is created or implied by law when certain conditions are satisfied. In an implied easement, the landowner of a servient estate does not have to agree to give an easement; instead, the law will imply the existence of the easement.

Going to court, establishing each requirement for the type of implied easement desired, obtaining a court order granting the easement, and filing the court order in the county deed records are all steps in the process of obtaining an implied easement.

What are Rights-of-ways?

In Texas, all rights-of-ways are easements, but not all easements are rights-of-ways.
To put it simply, a right-of-way is a type of affirmative easement. A right-of-way, however, only permits the grantee to cross over—or under—the property of another owner. In contrast, a conventional easement gives the grantee the legal right to use the property for a specific agreed-upon purpose.

Why Understanding Easements in Texas Is Important

When you are purchasing a property in Texas, it’s important to know if an easement comes with the sale. Your real estate agent can help you find out about the same. You can also contact the city to find out, or look at the property deed, plat, or other homeowner documents.

  • When a buyer purchases a property with an easement, he or she must abide by its rules. As a buyer, you have the right to use the property any way you want, so long as it doesn’t prevent the easement from being used in its intended way.
  • Easements may affect any renovations you can make to your property. Therefore, if you plan on any addition to your property, you must know if your neighbor has received an affirmative or negative easement. An affirmative easement allows something to happen whereas a negative easement will prevent the action.
  • Easements are challengeable in court, but there’s no guarantee of success, and can be quite expensive. But you can approach your neighbors who hold the easement to see if they might be open to terminating the agreement.

The simplest way to avoid legal formalities is to terminate an easement with the consent of both parties.

At Whitman Land Group, our high standard of success is due to a dedicated team of professionals with diversified backgrounds in public utilities, real estate, construction, and finance. Our core experience includes the acquisition of right-of-way easements, fee-simple titles, and water rights in multiple regions throughout Texas. Contact us to learn more.

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