- If you own land that does not have access to a public road, there are ways to get an easement over neighboring land to provide you access.
- An easement by necessity will only be granted if you can fulfill a three-prong test prescribed by the courts.
- To get an easement by necessity, you will likely have to resort to litigation.
Sometimes when I am thinking of things to write about in this blog, I hit a wall and cannot come up with any good thoughts. Its then I must go searching for some interesting ideas. That’s a short way to ask you not to judge me when I tell you I was reading a summary of a real estate decision from the Idaho Supreme Court this week when I had an idea of what to write about.*
The case was about some locked in land to which the property owner did not have access. And that got me thinking of how that is treated here in Texas. We have dealt with some similar issues for some of our clients previously. So that’s what I am writing about this week – how do you get to property for which there is no easy access?
What is an Easement?
I do not want to bore you with a law school lecture but to explain what happens to your landlocked parcel, we first need to understand what an easement is. An easement is a property right in land that is separate from the title ownership. It gives the dominant estate (easement holder) the right to access over the servient estate (the land owner) for a specific purpose.
The most common form of this is the utility easement. So if I own three acres of land (for example), I likely want to give Austin Energy an easement to install electricity lines so that I can have electricity on my property.
This is important when you have land that does not have access to a public road. I know that is weird to think of for us city folk. But it is not uncommon in rural areas.
How do You get to Land if there is No Access?
In Texas, therefore, what do you do if you do not have access to your land through any public roads? That is where an easement comes in. You are going to need to get an easement across someone else’s property to access your land. There are basically four types of easements that could potentially help:
- Agreed easement;
- Prescriptive easement;
- Easement by estoppel; and
- Easement by necessity.
Eventually I will try to talk about all of these individually. But this is a relatively short blog and I don’t want to completely bore you. So this week we are only going to talk about the last one – an easement by necessity.
An Easement by Necessity Can Help You Access Your Land
If you do not have access to a public roadway from your land and you do not have an express easement over a neighboring property, you may be able to get an easement by necessity. A court can grant you an easement over someone else’s property because it’s the only possible way to access your property.
To get an easement by necessity, you must demonstrate –
- Original unity of property of your landlocked property and the property over which you are seeking the easement;
- The claimed easement is a necessity to access your land; and
- The necessity existed at the time the property was severed from the purported servient estate.
You must prove all three of these to be able to convince a court to grant you an easement by necessity. See Hamrick v. Ward, 446 S.W.3d 377 (Tex. 2014).
Easement by Necessity Can Lead to Dispute
We have dealt with this situation multiple times on behalf of our clients in the past. And every time we have to deal with it, it inevitably leads to a dispute between the neighboring property owners.
The best course, therefore, is to try to come to an agreement with your neighbor granting you an express easement to access your land. But if you cannot come to an agreement, you do have the possibility of getting an easement by necessity. Though we will likely have to go to litigation to get a court to grant you that easement.
*This is not a normal thing for me. I was just depressed from Michigan’s loss in the NCAA tournament and was trying to avoid sports.