Establishing Access to Land-Locked Property

Posted by on Apr 19, 2016 in Blog, News | No Comments

website jbrThe rural landscape of Texas is becoming more and more fragmented as ranches are split up and sold to third parties or divided among family members. One unintended consequence of this fragmentation is that inadvertently land-locked properties are on the rise. This sometimes happens when the seller forgets to formally document a right of access to a parcel that was once part of a larger tract or when land has been passed down to family members with informal arrangements for access.

Since 1867, the Supreme Court of Texas has recognized that a necessity easement results when a grantor fails to expressly provide for a means of accessing the conveyed or retained land. Land without an express legal right of access is commonly referred to as “land-locked” property. In this situation, courts will imply a roadway easement in the interest of facilitating continued productive use of the land-locked parcel.

The Supreme Court of Texas clarified in 2014 that the party claiming the roadway easement to a land-locked, previously unified parcel must pursue a necessity easement theory. Generally speaking, the party seeking the roadway easement by necessity will need to be able to prove three elements. First, the land-locked party must prove unity of ownership prior to severance of the land-locked property (also called the “dominant estate”) and the property to be burdened by the roadway easement (referred to as the “servient estate”). Second, the land-locked party must prove that the claimed access is a necessity and not a mere convenience. Finally, the necessity must have existed at the time the dominant estate and the servient estate were separated into two parcels. If all three elements are successfully proven, the court will grant an easement by necessity that will continue as long as the necessity exists.

As with all matters of law, there are factual and legal subtleties to each of the elements listed above that are not addressed in this short summary. If you are faced with land-locked property, give us a call to discuss how we can help.

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