by Houston Commercial Litigation & Business Law Attorney Susan J. Taylor
An easement by express grant is an interest in land which subject to the Statute of Frauds in Texas. What that means is that an easement by express grant must follow the normal formalities of real estate instruments: it must be written, it must be properly subscribed by the party to be charged, it must show the grantor’s intent, and it must furnish a proper property description of the land to be conveyed.
Because an easement is an interest in land, the document creating the easement must be in writing, except where the easement arises by implication, estoppel, or prescription. The writings must meet the rules applicable to the conveyance of fee simple title. A transfer of land that states that it “dedicates” the land does not, as a matter of law, convey the fee simple.
The creation of an express easement contemplates a future use consistent with the grant, enabling the easement owner to carry out the object for which the easement was granted. An easement may be granted or reserved in a deed of trust. All co-tenants must join in creation of an easement; otherwise, the easement may not bind a successor who acquires full title.
The grantor in a deed of the dominant estate reserves an easement unto himself or herself to access to a contiguous parcel of land. For example, the owner of a tract of land may be willing to sell his frontage, but he or she will reserve and retain an easement across the parcel conveyed to access the remaining property. A reservation must identify the person(s) to whom it is made. A reservation in favor of a stranger to a conveyance in inoperative and cannot function as a conveyance.
Express easements should be artfully drafted. Further, if express easements are shown to be running across property that you are about to purchase, you will need to consult an attorney to determine how it affects your ownership.
Susan J. Taylor is a Houston-based commercial litigation and business law attorney. She began practicing law in Texas in 1985 with a primary concentration in business, real estate, and commercial litigation and bankruptcy. Ms. Taylor is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. For expert help with commercial litigation or business law issues, please contact The Taylor Law Group for a consultation.