IMPORTANCE OF TEXAS LANDOWNERS’ RIGHT TO EXCLUSIVE USE & ENJOYMENT OF THEIR OWN PROPERTY
The Supreme Court of Texas has expressly acknowledged Texas’ emphasis on one’s right to exclusively use their own land: A property owner’s right to exclusive enjoyment of property is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). But the right of exclusive use is not absolute.
A Texas landowner’ exclusive use right is diminished when he relinquishes such right by granting an easement. This grant is not always intentional. Nor is the grant always written.
Some easements are “express,” meaning that the grant of a usage right is reduced to writing. Other times, easements are implied. In the case of implied easements, there is no written instrument creating the right of another to access, cross or use another’s land.
In general, easements may be created by express grant, implication, necessity, estoppel, or prescription. Machala v. Weems, 56 S.W.3d 748, 755 (Tex. App.—Texarkana 2001, no pet.).
This post, once again, examines Estoppel Easements under Texas law.
WHAT IS AN EASEMENT?
An easement is a nonpossessory interest that authorizes a holder’s use of another’s property for a stated purpose. Marcus Cable , 90 S.W.3d at 700. Easements are common and can exist for a multitude of purposes. We commonly see easements that allow:
- installation of infrastructure such as water lines, gas pipelines or telephone poles (a utility easement);
- installation of overhead infrastructure such as telephone or electrical lines;
- discharge of stormwater over another’s property (a drainage easement); or
- a right to cross another’s property by vehicle (an access easement)
Notably, an easement (whether express or implied) does not convey title to property. Stephen F. Austin Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007).
ACCESS EASEMENTS
My daily practice as a real estate and water lawyer in Texas involves negotiating, drafting, and litigating over easements. This is a complex area of the law that I really enjoy.
Far and away, the easement disputes that I most frequently encounter involve access to land on foot or by vehicle. Access easement disputes usually arise when a property owner cannot reach their land from a public roadway without crossing the land of another. These situations are commonly referred to as “landlocks.”
Access easement disputes come in many forms, but typically involve neighboring tracts in rural or formerly rural areas. Often, the tract requiring access and the tract over which a necessity for access exists were once owned by a single owner (they had “unity of title”). But this isn’t always the case.
Whether the two properties once enjoyed unity of title is critically important for establishing an easement by necessity. In those cases, failure to establish unity of title is fatal to the claim of the party seeking to establish an easement.
Fortunately, unity of title is not an essential element for proving the existence of at least one species of implied easement: the Easement by Estoppel. Instead, Estoppel Easements focus on the conduct of the parties.
EASEMENTS BY ESTOPPEL
A series of Texas laws collectively referred to as the Statute of Frauds require certain agreements to be written before they can be enforced. One of these laws, Section 26.01 of the Texas Business & Commerce Code, require the following types of agreements (among others) to be written and signed by the person charged with the promise:
- a contract for the sale of real estate;
- a lease of real estate for a term longer than one year;
- an agreement which is not to be performed within one year from the date of making the agreement;
Under the statute of frauds, easements, as a general rule, are required to be in writing. Sandoval v Cmty. Missionary Baptist Church, No. 05-17-00456-CV, 2018 Tex. App. LEXIS 2637, 2018 WL 1773208, at *3 (Tex. App.—Dallas Apr. 13, 2018, pet. denied) (mem. op.); see also Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979)
The purpose of the Statute of Frauds is beyond the scope of this post. However, with an eye toward ensuring “equity,” Texas court decisions have created numerous exceptions to the statute of frauds. Once such exception is the doctrine of Easement by Estoppel:
The doctrine of easement by estoppel is an exception to the statute of frauds, Cleaver v. Cundiff, 203 S.W.3d 373, 375 (Tex. App.—Eastland 2006, pet. denied), and, “[b]eing a creature of equity, it seeks to prevent injustice and to protect innocent parties from fraud.” Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979);see also Machala v. Weems, 56 S.W.3d 748, 756 (Tex. App.—Texarkana 2001, no pet.). I
Under the doctrine of Easement by Estoppel, a landowner may be “estopped” from denying the existence of an easement created by “representations” upon which another has detrimentally relied. See Cleaver, 203 S.W.3d at 375. The doctrine is grounded on the notion that justice forbids one to gainsay his own acts or assertions which induced another to act detrimentally in reliance upon them. See Fiengo v. Gen. Motors Corp., 225 S.W.3d 858, 861 (Tex. App.—Dallas 2007, no pet.).
HOW IS AN EASEMENT BY ESTOPPEL CREATED?
The doctrine of Easement by Estoppel is not clearly defined, and must be applied considering the specific facts of the case. Drye, 364 S.W.2d at 209-10; see also Machala, 56 S.W.3d at 756. That is, each case in which equitable estoppel is sought to be applied must rest upon its own facts. Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987).
In all cases, three elements must exist to create an easement by estoppel:
- a representation of the easement communicated, either by words or action, to the promisee;
- the communication was believed; and
- the promisee detrimentally relied on the communication.
Storms, 579 S.W.2d at 452). “These elements apply at the time the communication creating the alleged easement is made.” Vinson v. Brown, 80 S.W.3d 221, 229 (Tex. App.—Austin 2002, no pet.)).
Importantly, the representation concerning the easement may be made by word or by action. Goodenberger v. Ellis, 343 S.W.3d 536, 541 (Tex. App.—Dallas 2011, pet. denied). However, to establish an easement by estoppel, the owner of the servient estate (the property over which the easement is sought) must say or do something at the time of the grant to induce acceptance by the dominant estate owner. Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 872 (Tex. App.—Austin 1988, writ denied).
Another requirement of an easement by estoppel is “that nothing be required of the grantor to perpetuate the easement.” Drye, 364 S.W.2d at 212. “The easement which is implied is a negative one: that the grantor simply not interfere.” Id. (distinguishing between alleged easement that requires “no act of the grantor” and alleged easement with “more difficult problems” such as “the question as to who is to pay taxes . . . indefinitely” on property).
HOW DIFFICULT IS IT TO PROVE THE EXISTENCE OF AN ESTOPPEL EASEMENT?
“The gravity of a judicial means of acquiring an interest in land of another solely by parol requires that equitable estoppel be strictly applied, and the estoppel ‘should be certain, precise and clear.'” Martin v. Cockrell, 335 S.W.3d 229, 237 (Tex. App.—Amarillo [Panel Op.] 2010, no pet.) (quoting Allen v. Allen, 280 S.W.3d 366, 381 (Tex. App.—Amarillo 2008, pet. denied)).
Courts have described this strict application as “inelastic.” This inelasticity works against more liberal constructions of the required elements. In practical terms this means that the proof required to establish each element must be present and convincing. My experience has been that Courts will typically not make presumptions in favor of the party seeking to establish the estoppel easement.
EFFECT OF A “GENTLEMEN’s AGREEMENT” OR VERBAL CONSENT
A “gentlemen‘s agreement” or “friendly neighbourly permission” to use land does not support easement by estoppel. See Martin v. Cockrell, 335 S.W.3d 229, 238-41 (Tex. App.—Amarillo 2010, no pet.):
Giving Cockrell the combination to the locked gate between the Ingrum and Martin properties was more in the nature of giving a license in real estate rather than creating an easement. See Machala v. Weems, 56 S.W.3d 748, 760 (Tex.App.–Texarkana 2001, no pet.). Martin could have changed combinations at any time. In addition, there is no evidence Martin had made any representation to Cockrell that would have required him to give Cockrell a new combination to the gate. Rather, the evidence shows that, only days later, Martin denied entry to Hopkins when he requested use of the pasture road to haul caliche from the pit located on the Cockrell’s property and thereafter refused to give Cockrell the combination to the locked gate at the entrance of the pasture road off County Road 24.
A license in real estate merely confers a privilege to do some act or acts upon the land without conveying any interest in or title to the land itself; Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex.App.–El Paso 1993, no pet.), and is revocable at will. Drye, 364 S.W.2d at 203.
HOW LONG DOES AN EASEMENT BY ESTOPPEL LAST?
Once created, an easement by estoppel is binding upon the successors in title if reliance upon the easement continues. However, an easement by estoppel may not be imposed against a subsequent purchaser for value who has no notice, actual or constructive, of the easement claimed. Goodenberger, 343 S.W.3d at 541.
TO MY ATTORNEY COLLEAGUES READING THIS POST: PERFORM LOCALIZED RESEARCH ON THE EFFECT OF MERE ACQUIESCENCE and THE REQUIREMENT OF A VENDOR-VENDEE RELATIONSHIP
A Note to Practitioners: Texas courts of appeals are split as to whether a vendor-vendee relationship is required for a finding of an easement by estoppel.
Some Texas Courts of Appeals hold that passive acquiescence, alone, to use of a roadway does not create an easement by estoppel where there is no vendor-vendee relationship between the owners of the alleged servient and dominant estates. Others do not require this relationship: See McClung v. Ayers, 352 S.W.3d 723, 729 n.2 (Tex. App.—Texarkana 2011, no pet.) (“We decline to require [the existence of a vendor-vendee relationship] in order to establish an easement by estoppel”).
I encourage you to begin your analysis concerning this requirement with a review of the 5th Court of Appeals (Texas) opinion in Hazzani, LLC v. Richardson Bus.Center, Ltd. That case contains an excellent survey (from 2019) concerning how various courts have treated this issue. A few cases have addressed the topic since then, but the Texas Supreme Court has not resolved the split!
Article By: Trey Wilson San Antonio Real Estate Attorney and Texas Water Lawyer
