Easements are nonpossessory interests in land. The holder of an easement has the right to use a tract of land for a special use only, and does not own or have full use and enjoyment of the land. Often, easements are created in Texas to give a person or corporation a right of access across a piece of land. For example, an Austin homeowner may give an easement to Austin Energy granting access to utility lines on the property. Easements can be private or public.
This article gives a general overview of each type of easement and its purpose. Sometimes there can be disagreements over rights of access to property and what can be done on property. If you have questions about Texas easements or are involved in a lawsuit over easements, contact Austin real estate attorney Farren Sheehan for an initial consultation.
Private Easements in Texas
A private easement grants usage rights to a tract of land between private persons or entities and does not concern the public at large. There are several terms that are used to further distinguish types of private easements in Texas that we will define here.
Affirmative Easements in Texas
An affirmative easement entitles the holder of the easement to the right to enter upon the tract of land and make or do some act on it. Austin area real estate attorneys see this type of easement in growing developments such as in Cedar Park and Round Rock. A common example is when a water company has the right-of-way to lay and maintain pipeline on privately owned property.
Negative Easements in Texas
In contrast, a negative easement entitles the primary owner of the property to compel the easement holder to refrain from engaging in a particular activity on the tract of land so the easement holder does not interfere with the use and enjoyment by the primary landowner. An example of both affirmative and negative easements is shown in an Austin case where an easement holder owned the affirmative right to operate aircraft over the servient property, and the owner of the property held a negative obstruction easement prohibiting the easement holder from building structures extending into designated airspace. City of Austin v. Travis County Landfill, 25 S.W.3d 191, 195-197 (Tex. App. – Austin 1999, motion to extend time filed).
Appurtenant Easements in Texas
The term “appurtenant” means that the easement attaches to, or is part of, the particular tract of land itself. An appurtenant easement requires two different tracts of land (referred to as tenements) to exist. The owner of the dominant tenement has the benefit of the easement and has the right to use the easement across the land of the servient tenement. The other property, the servient tenement, is subject to the easement right. Courts tend to strive to construe easements as appurtenant so that those rights are transferable with the property’s title.
Easements in Gross
An easement in gross means that the easement is owned by a business or entity. A common example of easements in gross in Texas are pipeline easements for oil and gas production. The rights are personal rights that usually terminate upon the death of the individual owner or demise of the business owner. However, easement in gross rights can be transferred or assigned in some circumstances.
Public Easements in Texas
A public easement grants usage rights to the land to the public at large. Public easements give the right of enjoyment and use to the public generally or to an entire community. A public easement may be created (a) by a dedication from the owner, (b) by prescription (use by the public for many years), or (c) by condemnation by the government. An example of a public easement is the one pertaining to Austin city streets that gives the municipality the right to lay sewer, gas, and water lines.
Sheehan Law, PLLC | Austin, TX Real Estate Attorneys
The specific rules and regulations for the type of easement you may be dealing with can certainly seem overwhelming. Sheehan Law is here to help. If you are involved in a legal matter dealing with easement, we will use our experience and knowledge to review all pertinent documentation, advise you of the best course of action, and represent you if necessary. Contact us today by calling (512) 251-4553 or by filling out our convenient online contact form.