Some landowners in Texas cannot access their landlocked property from a public road without crossing over private property owned by someone else. Contrary to popular belief, there is no automatic right of access, although there are a number of methods to consider in obtaining a legal right to access landlocked property. Establishing a permanent, enforceable right of access—rather than relying on friendly permission of a third party—will reduce headaches for landowners and their visitors.
Why legal access is important
If a Texas landowner has landlocked property, it’s a good idea to try and gain legal access to the property for both convenience and legal reasons. Title companies are usually unwilling to insure title to a property that lacks legal access, so without access, the property will likely be difficult to sell to any party desiring title insurance. Further, without insurable title, a lender is unlikely to issue a loan. Obtaining some sort of easement will likely be in the best interest of the landowner, whether the landowner wants to use the property or sell it. Here are some options to pursue.
Obtain an express easement from a neighbor. The easiest way to gain access to a landlocked property is to obtain an express easement from the neighboring landowner. This easement should be in writing, signed by the grantor, specifically identify the property and details of the allowed easement use, and filed in the county deed records.
Some neighboring landowners may grant this type of easement without requiring compensation, while others may seek some sort of payment for the right to cross their land. If a neighbor refuses to grant this type of express easement, a landlocked owner will likely be forced to look elsewhere for access.
Determine if there may be an “easement by necessity.” Texas law recognizes an implied “easement by necessity” in certain situations when it’s necessary to cross another landowner’s private property. To obtain an easement by necessity, a landlocked owner must prove all of the following:
- The same person must have at one time owned the landlocked property and tract across which access is sought (unity of ownership of the alleged dominant and servient estates prior to severance).
- The claimed access is a necessity, not a mere convenience.
- The necessity existed at the time the two estates were severed.
If a landlocked property owner is able to prove all three, he or she can seek a declaration of an easement by necessity from the court, which may then be filed in the county deed records. If a landlocked owner cannot demonstrate these three elements, an easement by necessity will not be recognized.
Determine if there may be a prescriptive easement. Prescriptive easements are essentially obtaining an easement through adverse possession and are disfavored by law. To obtain this type of easement, the person claiming the easement must prove he or she has used the easement for at least 10 years and the use was open and notorious, continuous, exclusive, and adverse.
Exclusive means only the person seeking the easement has made this use. For example, if any other person used the road, this element is not satisfied. For the use to be adverse or hostile, the landlocked property owner, or the prior owners utilizing the easement for the required 10-year period, must prove they did not have permission and made some affirmative act to indicate their hostile use of the property. If permission to cross the land was granted, an easement by prescription will not be recognized.
If a landlocked property owner can prove the 10 years of use was open and notorious, continuous, exclusive, and adverse in court, he or she may be able to obtain a legal prescriptive easement to file in the deed records.
Determine if there could be an easement by estoppel. An easement by estoppel arises when one person acts in reliance on being told an easement exists.
For example, a buyer purchases a landlocked property and starts building a house based upon a promise from the neighbor that the buyer can cross his private land to access the property. Later, the neighbor denies the promised access. This could potentially create an easement by estoppel. To enforce this type of easement, the landlocked owner would be forced to file a court action, prove each element, and get an order from a judge.
The three required elements for easement by estoppel are:
- A representation
- Belief in the representation
- Reliance on the representation.
Seek a statutory easement from the commissioners’ court. A statute in the Texas Transportation Code allows a landlocked property owner to seek a public road from the commissioners’ court. The landlocked owner must file a sworn application with the commissioners’ court and provide notice to each property owner who would be affected. A hearing on the application will be held, and if the commissioners’ court determines the landowner has no access to their land, the court may issue an order creating a public road.
Note that in the statute, if the factors are met, the commissioner’s court may issue an order creating a public road—it is not required, and it’s within the commissioners’ discretion whether to do so.
Damages to affected property owners will be provided in the same manner as for other public roads, and the county pays all costs in connection with proceedings to open a road. The county is required to make the road initially suitable for use as a public access road, but is not required to subsequently maintain the road.
Although there is no automatic right to access property, there are numerous options landowners can consider to obtain legal access to their landlocked property.