Question: I own property that is landlocked–I’ve got no way to access my land from a public road without crossing over private property owned by someone else. What can I do to access my property?
Answer: Despite many people thinking that landowners always have an automatic right to access their landlocked property, under Texas law, that is not always the case. A landlocked landowner has a number of options to consider.
- Obtain an express easement from a neighbor. Likely the easiest way to obtain access to landlocked property is to obtain an express easement from a neighboring landowner. This easement should be in writing, signed by the grantor, specifically identify the property and details of the allowed easement use, and filed in the county deed records. Some neighboring landowners may grant this type of easement without requiring compensation, while others may seek some sort of payment for the right to cross their land. If a neighbor refuses to grant this type of express easement, a landlocked owner will likely be forced to look elsewhere for access.
- Determine if there may be an easement by necessity. Texas law recognizes an implied easement by necessity in certain situations. In order to obtain an easement by necessity to cross another’s property, a landlocked owner must prove: (1) unity of ownership of the alleged dominant and servient estates prior to severance (in other words, the landlocked property and tract across which access is sought must have, at one time, been owned by the same person); (2) the claimed access is a necessity, not a mere convenience; and (3) the necessity existed at the time the two estates were severed. Unless all three of these elements can be shown by the landlocked owner, an easement by necessity will not be recognized. If a landlocked owner is able to prove each of these elements, he or she can go to court and seek the declaration of an easement by necessity by the court, which may then be filed in the county deed records.
- Determine if there may be a prescriptive easement. Prescriptive easements are essentially like obtaining an easement through adverse possession and are disfavored by law. In order to obtain this type of easement, the person claiming the easement must prove that he or she has used the easement for at least 10 years and the use was: (1) open and notorious; (2) continuous; (3) exclusive; and (4) adverse. These elements must be proven by the landlocked owner and several of them are often problematic. The exclusivity requirement means that only the person seeking the easement made this use; if the road was used by the owner of the property which it crosses or by any other person, this element is not satisfied. The adverse or hostile requirement can be difficult to prove as well. In order for the use to be adverse or hostile, the landlocked owner must prove that he or she (or the prior owners utilizing the easement for the required 10 year period) did not have permission and made some affirmative act to indicate their hostile use of the property. If permission to cross the land was granted, then no easement by prescription will be recognized. If a landlocked owner can prove each of these elements in court, he or she may be able to obtain a legal prescriptive easement that can be filed in the deed records.
- Determine if there could be an easement by estoppel. An easement by estoppel arises when one person acts in reliance on being told an easement exists. The elements required are: (1) a representation; (2) belief in the representation; and (3) reliance on the representation. For example, if a person purchased landlocked property and began building a house based upon a promise from a neighbor that he or she could cross his land to access the property, but then the neighbor denied the promised access, that could potentially create an easement by estoppel. Again, in order to enforce this type of easement, the landlocked owner would be forced to file a court action, prove each element, and get an order from a judge.
- Seek a statutory easement from the commissioners court. A statute in the Texas Transportation Code allows a landlocked landowner to seek a public road from the commissioners court. Do note, however, that a prior version of this statute was declared unconstitutional by the Texas Supreme Court, and the current version is very similar to that prior statute. Texas Transportation Code Section 251.053 provides that “a person who owns real property to which there is no public road or other public means of access may request that an access road be established connecting the person’s real property to county public road system…” In order for this action to be taken, the landlocked owner must file a sworn application with the commissioners court, notice must be given to each property owner who would be affected, and a hearing on the application will be held. If the commissioners court determines the landowner has no access to their land, the court may issue an order creating a public road. Damages to affected property owners will be provided in the same manner as for other public roads and the county pays all costs in connection with proceedings to open a road. The county is required to make the road initially suitable for use as a public access road, but is not required to subsequently maintain the road. Note that in the statute, if the factors are met, the commissioner’s court may issue an order creating a public road–they are not required to do so. It is within the commissioners’ discretion as to whether to do so.
If a landowner has property that is landlocked in Texas, it is prudent to try and gain legal access to the property for both convenience and legal reasons. Establishing a permanent, enforceable right of access, rather than relying on friendly permission of a third party, will reduce headaches for a landowner and his or her visitors Title companies are usually unwilling to insure title to a property that lacks access, so without access, the property will likely be difficult to sell to any party desiring title insurance. Further, without insurable title, a lender is very unlikely to loan money against the property. Thus, obtaining some sort of easement will likely be in the best interest of the landowner, whether he or she wants to utilize the property themselves or sell it to someone else. Although there is no automatic right to access property, there are numerous options discussed above that a landowner can consider and seek to utilize in order to obtain legal access to his or her landlocked property.
Lastly, I recorded a podcast with Texas attorney James Decker on this topic. He helps explain these issues in more detail and offers some war stories about cases in which he has been involved. To listen in, click here.