WHAT IS A “LANDLOCK”?
In real estate, the term “landlocked” refers to the circumstance where a piece of property has no legal access to a road or highway. To be truly “landlocked” a property must literally have no means of access, regardless how circuitous or inconvenient potentially available routes might be.
Landlock generally happens in one of two ways: (a) the owner of a tract of land subdivides and sells a portion of his land but fails to expressly reserve access to and from his retained tract; or (b) the owner of a tract of land subdivides and sells a portion of his land but fails to grant access to the owner of the subdivided tract.
Although not explicitly prohibited, Texas law generally disfavors landlock, in large part because there is a preference against economic waste: “courts will imply a roadway easement to facilitate continued productive use of the landlocked parcel, rather than rigidly restrict access.”
AN EXPRESS OR IMPLIED ACCESS EASEMENT MAY EXIST
If You are dealing with a landlock in Texas, access through the establishment or recognition of an easement may be closer that you think. Here are 4 things the owner of a seemingly landlocked tract should consider doing:
1. CHECK THE CLERK’s PROPERTY RECORDS TO SEE IF AN EASEMENT HAS (EVER) BEEN RECORDED.
An easement that has been reduced to writing is called an “express easement. An express easement is an interest in land and, to convey the interest, there must be a writing sufficient to satisfy the statute of frauds and statute of conveyances. This generally means that the easement must be written, signed by the grantor, and contain all essential terms. Although no special form or particular words need to be employed, because an easement is an interest in land, the grant should have the same essential characteristics as a deed to real estate.
More than once, we have located express easement documents in a property’s recorded chain-of-title. Sometimes written grants of easements are properly recorded and then somehow omitted from subsequent conveyances. Other times they are misfiled by the Clerk and missed by title companies but still appear of record in the County Clerk’s files..
A property records search at the local courthouse can be time consuming but this exercise is well worth it if there’s even the slightest chance that an express easement may be buried in the recorded documents related to a property.
2. ASK THE PRIOR OWNER OF THE PROPERTY ABOUT THEIR MEANS OF ACCESS.
It is important to understand how the property has historically been accessed. Certain implied easement rights can arise through historical use, even when there is no written grant of access (no express easement exists).
Two types of implied easements that arise in this way are Easement by Estoppel and Easement by Prescription. These easement types are established based upon vastly different proof, but both require the party seeking the easement to establish historical use of a neighboring property for access purposes.
3. OBTAIN A TITLE HISTORY OF THE PROPERTY
It is important to understand whether the property that appears to be landlocked was once part of a larger tract, and if so, when common ownership was severed. These are two of the important factors in determining whether an easement by necessity exists.
To assert a necessity easement, the party claiming the easement must successfully demonstrate: (1) a unity of ownership of the alleged dominant and servient estates prior to severance; (2) that the claimed access is a necessity and not a mere convenience; and (3) that the necessity existed at the time the two estates were severed.
The standard of proof to establish an implied easement by necessityis “strict necessity.” Under the strict necessity standard, “[n]ecessity means that the use of the easement must be economically or physically necessary for the use of the land and not merely desirable.” Easements by necessity are temporary and terminate upon the cessation of the necessity that created them.
4. ASK A NEIGHBOR WITH ACCESS TO GRANT OR SELL YOU A WRITTEN EASEMENT
Another option is to pursue the voluntary grant of easement rights from a neighboring landowner. While this may seem undesirable, purchase of access rights may be quicker and far less expensive than litigation.
Naturally, if an agreement is reached, the parties would be wise to engage the services of a skilled real estate lawyer to properly draft the easement document and get it recorded.
