This post discusses the two most common methods of creating an easement where a written easement document doesn’t exist. Though written easements are fairly common, an easement can also be established without a written document.
What happens when a piece of property is totally landlocked? Can you just drive across your neighbor’s land to get to yours? Do you have to buy a strip of his land to put down a driveway? The answer depends on any number of facts unique to each piece of land, and each real estate transaction.
As a general matter, landlocked property is disfavored under Texas law. The policy of the State is for people to use their property, and as a result the court system has developed several ways to gain access to landlocked property.
Easements are far more common than most people expect. More than likely, the real estate you own is subject to easements owned by a utility provider, a city, the state, or a railroad company. Easements can be found in cities, rural areas, and exist on almost every piece of real estate you will ever buy or sell. The vast majority of these easements are written and recorded in the county real property records. The most reliable, inexpensive, and fool-proof way to acquire a permanent right of access is via a written easement document.
Easements can also be created without a written document. Texas law contains several types of non-written easements. The two most common are:
An easement by prior use can exist where two parcels of land where jointly owned at some point in the past, where its intended use existed at the time the parcels were sold, and where the use was intended to continue unto the future. Imagine a large farm, with a long driveway cutting across the front half of the property to a home on the back half. Suppose the farm is cut into two tracts, the home is sold, but no written easement is created as a part of the sale even though both the seller and the buyer intended the driveway to be used in the future. The buyer here could establish an easement by prior use because the two parcels were previously owned by the same person, and the use was intended to continue
Finally, easements by estoppel are based on fairness. These easements come into creation when permission is made by a neighbor that a landowner can access the neighbor’s property to the benefit of his own land. Imagine that, several years ago, you purchased a piece of land that was heavily wooded, with the intention of building a cabin on the far back corner of the property. Next, your neighbor approaches you and gives you permission to build a driveway to the back corner, so that you don’t have to cut down any trees. You proceed to pave the driveway, and use it for several years. Suddenly, the neighbor tells you that you aren’t allowed to use the driveway because it is on his property. In this situation, you could sue to establish an easement by estoppel, because it would be unfair for the neighbor to withdraw his permission after you relied on it to build the driveway.
As you can see, the individual facts of each case determine which easement can exist. If you think you are entitled to an implied easement, want to discuss the creation of a traditional written easement, or have any other question concerning real estate law, please give us a call today to see how we can help.
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