EASEMENTS ACROSS RURAL LAND NEAR HOUSTON

THERE ARE ALL KINDS OF EASEMENTS AND THEY IMPACT YOUR PROPERTY IN A LOT OF DIFFERENT WAYS. PERHAPS THE MOST IMPORTANT EASEMENT COULD BE THE ONE YOU DON’T KNOW ABOUT.

WHAT IS AN EASEMENT?

Essentially an easement is the legal right for someone other than the underlying land owner to use a property for a specific purpose. The holder of an easement has an interest in land that’s owned by another party. The easement rights are dominant to the rights of the underlying property owner.

EACH EASEMENT IS UNIQUE.

Individual easements differ from all others even if only by location. Easements are particular to a separate ownership. Even if an owner has several tracts, the easements on each are different in terms of location, size, length and shape. The easement holder is restricted by the terms of the easement as negotiated with the underlying land owner. The infrastructure situated in a particular easement may be different from other easements. Each characteristic impacts the underlying land differently.

HOW DO I KNOW IF MY LAND HAS AN EASEMENT?

There are all kinds of easements and they can impact your property in a lot of different ways. The most important easement could be the one you don’t know about. Before you buy or sell rural land it is essential to know if there are any easements in place.

Easements are almost always recorded in the County Clerks office. The preliminary title report or title commitment generated at a closing will provide notification they exist and are excluded from coverage but will not include copies of the recorded easement. If there has not been a recent transaction a title review can be conducted by an abstractor or attorney which will indicate the easements on a particular property.

The other type of easement you might not know about is the one that is about to happen. In any event, this is the time for some research. Ask your professional land agent for advice.

CAN AN EASEMENT OR RIGHT OF WAY BE PLACED ACROSS YOUR LAND WITHOUT YOUR APPROVAL?

Yes, they can. In Texas if a government agency or a private entity has the right of eminent domain they can acquire an easement across your land and then build infrastructure within that area. You have the right to just compensation based on market value. You absolutely should consult with an attorney experienced in eminent domain matters. This is a separate area of legal specialization. If litigation is warranted, your attorney will arrange for an appraisal conducted by an appraiser experienced in right of way valuation and litigation support to include expert witness testimony. You should rely upon your attorney to select any witnesses to include appraisers.

DOES YOUR LAND LOCKED PROPERTY HAVE AUTOMATIC RIGHT OF ACCESS BY EASEMENT?

No, it does not. However, there are a number of ways to obtain a permanent, enforceable right of access. Legal access is important for several reasons; it is difficult to sell a landlocked tract, title companies will often not insure a landlocked tract, lenders often will not lend on a tract with no access. All of the above factors will generally result in a highly discounted value.

There are several options to pursue when obtaining an easement across an adjoining property, all are challenging. You should always involve a real estate attorney during the process of obtaining an easement. Some of the options are as follows;

EXPRESS EASEMENT. This is the most straight forward and usually easiest way. Basically this means obtaining a written easement from your neighbor to cross their land to gain access to a road. There is the possibility this will involve a financial consideration.

EASEMENT BY NECESSITY. This is an implied easement and requires proof of three things in court.

• Claimed access is a necessity not a convenience.
• The same person must have owned both the landlocked tract and the property across which access is sought.
• The necessity existed at the time of the severance.

PRESCRIPTIVE EASEMENT. This is essentially obtaining an easement by adverse possession. The person claiming the easement must have been the exclusive user for at least 10 years. The use has to have been open, continuous, adverse, exclusive, and notorious. This of obtaining an easement is not favored by law.

EASEMENT BY ESTOPPEL. The person claiming the easement believes and can prove that the person owning the property to be crossed represented the use of an easement for access and the person claiming the easement acted based on that representation. An example would an individual bought a rear lot and built a house on it base on the sellers promise to allow access to the house.

STATUTORY EASEMENT. There is a statute in the Texas Transportation Code which provides for access to a land locked property being granted by the county commissioners court. In this instance an individual could file a sworn application with the commissioners court for an easement. Each adjoining property owner would have to receive notice. At that point a heating in front of the commissioners court would be held and the commissioners would rule

RIGHTS OF WAY ARE OFTEN A TYPE OF EASEMENT.

A right of way allows the public or a private entity to cross over an individual property. Some examples would include; roads, power transmission lines and cross country pipelines. A right of way is basically the physical land or corridor in which the infrastructure (the pipeline, power line, road, and the like) is located. Easements are basically a single building block of the entire right of way route. If you are approached regarding having an easement placed across your property, always seek advice from an attorney specializing in eminent domain.

HOW DO EASEMENTS IMPACT PROPERTY?

By impact I mean change in value. Most people’s initial reaction to easements is negative. However, easements can impact property in both positive and negative ways. One of the most important aspects of an easement is the infrastructure located within them. Another consideration would be the restrictions of use language peculiar to each individual easement. For example,

Easements are common in rural areas and rural land would have little value without them. Easements provide access to landlocked tracts and utilities to almost all properties. On the other hand, rights of way for cross country infrastructure bring no benefit to a specific property and often have a negative impact on value. We will discuss this below.

CAN EASEMENTS OR RIGHTS OF WAY BE APPRAISED?

Easements are not traded in the open market so they don’t have a market value in and of themselves. However the impact of an easement on the value of a particular tract of land can be measured. Accordingly being able to appraise this impact is important. In Texas both the property code and case law support the take plus damage rule. Basically this rule says that the underlying market value of the land is used to estimate the take (acquisition) and the damage (diminution) to the remaining land as a result of the imposition of the easement.

The impact on the remainder as a result of an easement could result in an increase, no change or a decrease to the land. Even if there is a decrease (damage) to the remaining property, it may not be legally compensable. Examples of non compensable items include; sentiment, legacy, emotional attachment and the like. An appraisal of the impact of an easement must be supported with comparable sales of properties with and properties without similar easements.

When appraising the impact of easements for public acquisition, the impact is always the loss in value of the property, not the value of the easement to the entity acquiring (taking) the easement.

For additional information to include a more detailed discussion of the above technical terms, please read The Appraisal of Easements is an article I wrote for the Right of Way magazine dealing with this topic in a considerable amount of detail.

CONSERVATION EASEMENTS

So far we have been talking about easements across a portion (partial acquisition) of a property. Some easements involve the entire property.Conservation easements often involve the entire property.

A conservation easement is a voluntary agreement between the owner and a qualified entity (the easement holder) to limit the development of the land subject to the easement. Each conservation easement is unique and the restrictions will vary widely. These easements will recorded in the County Clerks office like all easements.

The purpose of conservation easements is to set aside land from development for uses such as; wildlife habitat, sustainable forests, protection of water quality, protection of scenic views, sustainable agriculture, restoration of native plants and grasses, and many more.

One way to describe a conservation easement is to call it a highest and best use easement. Because conservation easements restrict certain uses it can change the highest and best use of the land. For example, changing from a highest and best use of transitional investment land to be eventually developed before the easement to agricultural use or wildlife conservation after the easement. The change in highest and best use will usually impact (reduce) the value.

The decision to enter into a conservation easement should always involve the advice of attorneys, accountants, appraisers and other relevant professional who specialize in this area.

LEGAL ASPECTS OF EASEMENTS

The legal aspects of easements and rights of way are not the topic of this post mainly because I am not an attorney. A couple of clicks on Google and you will find a world of discussion about topics related to easements such as; the bundle of rights whichincludes easements, limitations of easements, types of easements, creation and termination of easements, etc.

One of the best discussions dealing with the legal aspects of easement is E asements in Texa s by Judon Frambrough who was an attorney and professor at the Real Estate Center at Texas A&M. He also covers the creation and termination of both private and public easements.

CONCLUSIONS

Easements are intertwined with the ownership of rural land. In terms of impact they can be positive or negative. By impact I mean change in value. Whether you are buying, selling or an owner of rural property you would be well served to be knowledgeable about the existence of any easements already situated on the property. Always seek legal advice when faced with a decision involving easements or rights of way.

LET US HEAR FROM YOU

If you have been involved with easements and rights of way please share your experiences with us. If you are faced with having an easement placed on your property for the first time, (or any time) feel free to send us your questions. We have decades of experience with all types of easements and rights of way and are more than glad to discuss your situation.

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Allen Realty Advisors represents buyers and sellers of fine quality rural land near Houston. We specialize in weekend retreats, country estates, farms and ranches, recreational property and investment land. Our market area is generally within 100 miles (two hours) of Houston.