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Buying Texas Property: The Importance of Checking Easements

By Tabitha Naylor

There are many people who think that if you own land in Texas you have the unquestionable legal right to access it, but this is not the case. In fact, as the population continues to grow in Texas, more and more land is becoming landlocked-inaccessible to it owners. Understanding easements is critical to ensure you do have the legal right to access your property, and that the easement attaches to the land so that you can sell the property in the future without access problems.

In Texas there are two types of land access easements. The first is an easement appurtenant. This type of easement attaches to the land and benefits the owner. The owner has the legal right to use the easement to access the property. When the owner sells the land, the easement remains attached to the property and benefits the next owner of the property. The second type of land easement is an easement in gross. Easements in gross attach to and follow a specific individual. It stays with the individual who receives the easement even if ownership of the land changes hands. It is really a personal right as opposed to ownership in the real property. Easements in gross cannot be transferred or assigned unless the right is actually stated or granted in the easement itself. To protect your land from becoming landlocked the appurtenant easement is the best type of easement.

Easements can become very complicated depending on the number of properties involved in the easement. It is best to involve legal assistance to ensure your easement is legally tight and that your property will have free and unobstructed access now and in the future. There have been court cases where one property owner decides to erect a gate or fence that cuts off access for another property owner so the details of the easement and the proper recording of the easement are all issues you need to research carefully and properly document. The language of the easement must also be extremely detailed and accurate for your protection and the protection of anyone you may ultimately sell to. Ambiguous language opens the door to legal suits and future access issues.

Apart from land or use easements Texas also has conservation easements. Conservation easements are voluntary legal agreements that ensure a property will be maintained according to the landowner's wishes for a period of years into the future and can qualify the landowner for tax benefits.

The holder of the conservation easement must be a governmental entity or a qualified conservation organization. With a conservation easement, the landowner retains the legal title to the property and determines the types of land uses to continue and those to restrict. As part of the agreement, the landowner grants the holder of the conservation easement the right to periodically assess the condition of the property to ensure that it is maintained according to the terms of the legal agreement.

With a conservation easement, a landowner limits one or more of his rights to manage resources, change use, subdivide or develop the property. When a landowner donates a conservation easement the owner may choose to limit the right to further develop the property but retain the right to build a house or grow crops. The landowner can continue to use the property as long as the resources the conservation easement is intended to protect are sustained.

Understanding easements is vitally important to ensuring your rights of access and use are fully protected now and in the future.

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