It is important that explicit easements are always reduced to writing and, in order for them to be enforceable against third parties such as the new owners of one of the properties in question, they must be recorded in the records of the county deed. This type of easement is created by the express agreement of the parties and adheres to the formalities of real estate instruments in Texas. Explicit easements must be in writing, duly signed by the party to be incriminated, demonstrate the intention to agree with a reasonable legal description, recognized (if registered) and properly delivered. Choose v. Bartel, 659 S.W.2d 636 (Tex. 1983). Servitude out of necessity. An easement necessarily exists when a grantor transfers or retains land and does not expressly provide a means of access. In this situation, the courts have assumed that the original landowner had foreseen this and will involve facilitated access. For example, suppose Amy owned 100 acres and offered to sell the back 50 acres that had no other access to Brett. This is the kind of scenario in which a court would likely conclude that an easement should be implied out of necessity. The best approach for easements is to make sure they are written.

The parameters, set out in a document agreed to by both parties and recorded in the county`s title deeds, protect the rights of active and dominant owners. In addition, all costs incurred in preparing and registering the explicit servitude are likely to be minimal compared to the costs of proving the implied servitude in court. Servitudes by necessity are often implicitly confused with servitudes, but are not the same thing. To necessarily create a servitude, one must prove: there are many ways to establish an easement in Texas, as established in the common law. To obtain a prescribed easement, the person claiming the easement must prove that he or she has used the easement for at least 10 years and that the use: (1) was open and well-known; (2) on an ongoing basis; (3) exclusive; and (4) harmful. An example of these fulfilled elements was a case involving a country road on a landowner`s property, where neighbors used it for more than forty years without permission, not allowing any other person to use the road, maintain the road, and eventually surround the road with a fence and gate. See Boerschig v. Southwestern Holdings, 322 S.W.3d 752 (Tex. Ct. App.

– El Paso 2010). Although it is possible to acquire a prescribed easement, these elements are generally very difficult to prove for the party applying for the easement. In general, there are two categories of servitudes: express and implicit. Servitudes play an important role in everyone`s life. People go through daily servitudes that have been granted, dedicated or condemned for public rights of way. In addition, people are constantly consuming energy that is transported along pipelines and utility easements. In rural areas, many areas not served by public roads would be virtually worthless if there were no private easements running through nearby properties. An easement is defined as a right, privilege or benefit relating to real property that exists independently of ownership of the land.

In other words, easements consist of an interest (or estate) in real estate that is not full ownership. Most often, an easement involves the right of one person (or the public) to use another person`s land in a certain way. Easements should not be confused with licences. A license is simply the permission given to a person to commit an act or acts on someone else`s land. This does not create interest in land such as easements. Licenses do not need the written form to be effective and are generally revocable at any time. Tickets for entertainment or sporting events are a good example of licensing. An easement is a means by which a landowner grants another person the right to use the landowner`s property for specific purposes.

The land on which the servitude is granted is called the “serveent domain”, and the land on which the servitude benefits is called the “dominant domain”. For example, if Amy granted Brett an easement to cross her land to reach her own property, Amy`s land would be the serviced estate and Bretts the dominant estate. Landowners who grant an explicit easement should be careful in the exact wording of the concession document, as this could seriously affect the rights of the dominant property and the property served. For example, in one case in Texas, incumbents granted an easement that was considered a “ranch road” and attempted to restrict use when dominant landowners built a development on their property and allowed residents to use the road. See Boerschig v. Southwestern Holdings, 322 S.W.3d 752 (Tex. Ct. App. – El Paso 2010). The court ruled that the mere use of the term “ranch road” without offering a more detailed restriction was not sufficient to restrict the use of the road. It is recommended that you work with a lawyer who is familiar with these issues to ensure that the easement reflects the intent of the parties. This publication explains two broad categories of easements – private and public.

Private easements are those whose enjoyment and use are limited to one or a few persons. Public easements are those in which profit sharing and rights of use are vested in the general public or an entire community. An explicit servitude is affirmed by the servile owner of the estate. The terms of this easement are governed by the language that creates the easement and not by the actions of the parties. (d) The adjacent owner of the land who is granted the easement of access under this section shall maintain the easement and keep the easement open for public use. A landlocked state in itself does not create the need for servitude. The plaintiff must prove conduct between the two goods, since the courts have ruled that no one can necessarily have an easement on a stranger`s land. The need must also be strict, which means that it is the only possible access to the other property. Duff v. Matthews, 311 S.W.2d 637.

Prescriptive easements are essentially like obtaining an easement through unfavorable possession, which is a concept discussed below. Unlike easements of necessity or pre-use, where the consent of the landowner has been accepted, prescribed easements can only exist if there is no such authorization to use the easement. Since the courts tend to favour this type of servitude, each element is rigorously examined. An order easement is an easement obtained and held by an applicant against the will of the landowner. The plaintiff usually confirms the application for servitude by court order and must satisfy these requirements: an easement does not transfer ownership of the property itself, but transfers the right to do what is expressly granted and all rights reasonably necessary for it. In general, the person to whom an easement is granted has an obligation to enforce the easement and an obligation to maintain the easement, unless the parties have changed otherwise. The party who granted the easement has an obligation not to interfere with the use of the easement by the dominant owner of the estate. (a) unless the parties waive the division of ownership under this Chapter in an action, the property sharing commissioners grant a non-exclusive easement of access to a section of a parcel of shared land to permit reasonable entry and exit from an adjacent shared property that does not have access by an existing highway or easement; which belongs to the leaflet.  The grant decision to facilitate access must contain a legal description of the easement.

(c) the facilitation of access shall not be wider than a width prescribed by a municipality or county for a right-of-way on a road or highway;  The access road should be the shortest route to the adjacent wing, which: If you have any questions about the execution or determination of easements, contact an experienced real estate lawyer. Easement law in Texas is complex and requires the knowledge and skills to navigate the different types of easements available to landowners. An implied servitude is an easement that was not created by an express concession, but a legal implied servitude if certain conditions are met. In this situation, the landowner of a servant estate does not have to agree to grant an easement. Instead, the law implies that an easement exists. To obtain an implied easement, the party applying for the easement must apply to the court, prove each of the elements necessary for the type of tacit servitude sought, obtain a court order granting the servitude, and file the court order in the county charter records. As mentioned above, explicit easements are always recommended, as the cost, time and uncertainty of the process can be avoided in order to obtain an implied easement. The different types of implied easements include servitudes by necessity, servitudes by prior use, servitudes by prescription and easements by estoppel. Easements are a pervasive element in Texas real estate law and are generally defined as a right, privilege, or benefit that exists as a separate interest from property rights in real estate. Most often, an easement allows one person (or the public) to use another person`s land in a certain way. An easement is a legal right to use someone else`s land for public or private purposes.

Although many easement agreements are recorded in property registers, this is not always the case. Some easements can be obtained in other ways. If an applicant invokes in good faith the oral consent of a landowner to an easement that is subsequently withdrawn, the applicant may apply for an easement by estoppel […].