Question:  I own property in Texas.  I previously granted a roadway easement to my neighbor so he can access his property to the west.  Who is required to maintain the easement, including both keeping up the roadway and mowing the grass and trimming the trees along the road?

Answer:

The first step in answering this question is to look at the terms of the easement itself if it is a written easement.  If there are any contractual terms in the easement agreement describing who is responsible for maintenance, or listing specifically what either party has to do as far as maintenance is concerned, that will govern.

If the easement either contains no language related to maintenance (or is not written at all), the default rule is that the dominant estate owner (meaning the person who was granted the easement) is required to “adequately maintain” the easement at no cost to the servient estate owner (the easement grantor).  Absent an express agreement to the contrary, the owner of the dominant estate has a duty to maintain the easement, and the owner of the servient estate has no right to interfere with the dominant estate.  Roberts v. Freindswood Dev. Co., 886 S.W.2d 363, 367 (Tex. Ct. App. – Houston 1994).  The owner of the dominant estate must make reasonable use of the right and not unreasonably interfere with the property rights of the owner of the servient estate”  Barnett v. Harvard, 2014 WL 2611153 (Tex. Ct. App. – Beaumont 2014).  Thus, the owner the servient estate is under no obligation to maintain the easement and is not required to share in expenses of completing such maintenance.  See West v. Giesen, 242 S.W. 312, 320-21 (Tex. Civ. App. 1922).

For example, as the Barnett court explained, the party holding a roadway easement was responsible to maintain and repair the road and to prevent flooding.

What Should We Learn?

The take home lesson from this blog should be that anytime an easement is negotiated, terms should be included related to repair and maintenance of the easement.  Despite the fact that this is a legal duty imposed on the easement holder, parties often disagree about what exactly is adequate maintenance.  For example, the easement agreement should specify exactly what maintenance activities are required by either party.  This may include repairing ruts in a road, trimming trees or bushes, or re-seeding the grass after a pipeline is installed.  Rather than relying on the ambiguous “adequately maintain” language, the agreement should be very clear as to what is expected of each party in order to avoid a dispute down the road.