Help! I’m Landlocked!

Welcome to the Kazi Law Firm! We are a boutique law firm steeped in Texas tradition personifying the warmth and congeniality consistent with southern hospitality. We believe in preserving integrity and professionalism with true Texan charm, staying true to our roots, while providing essential, affordable legal services to all. Located just north of Dallas, Texas in the rapidly growing suburb of Frisco; the Kazi Law Firm concentrates on contracts drafting and review, wills & estate planning, real estate law, landlord, tenant, mediation, and general business law needs.

In a state as vast as Texas, open sprawling acres of land is not uncommon. However, some landowners can’t access their landlocked property from a public road without crossing over private property owned by a neighbor. Now you must be thinking, “what’s the big deal?”

Contrary to popular belief, there is no automatic right of access in Texas for private landowners with landlocked property to cross private land owned by another. Fortunately, there are a number of methods to consider in obtaining a legal right to access landlocked property. Establishing a permanent, enforceable right of access, rather than relying on friendly, yet fickle permission of a neighbor, will reduce headaches for landowners and their visitors for years to come.

Legal Access

If a landowner has landlocked property, it’s a good idea to try and gain legal access to the property for both convenience and legal reasons. Title companies are usually unwilling to insure title to a property that lacks legal access. Hence, without proper legal access, the property will likely be difficult to sell to any party desiring title insurance. Further, without an insurable title, a lender is unlikely to issue a loan. Thefore, obtaining an easement is in the best interest of the landowner, whether the landowner wants to use the property or sell it in the future.

Types of Easements

Express Easement:

The simplest and cheapest way to gain access to a landlocked property is to obtain an express easement from the 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.

Easement by Necessity:

Texas law recognizes an implied “easement by necessity” in certain situations when it’s necessary to cross another landowner’s private property. To obtain an easement by necessity, a landlocked owner must prove all of the following:

  1. The same person must have at one time owned the landlocked property and tract across which access is sought (unity of ownership of the alleged dominant and servient estates prior to severance).
  2. The claimed access is a necessity, not a mere convenience.
  3. The necessity existed at the time the two estates were severed.

If a landlocked property owner is able to prove all three elements, he or she can seek a declaration of an “easement by necessity” from the court, which may then be filed in the county deed records. If a landlocked owner can’t demonstrate all three, an easement by necessity will not be recognized.

Prescriptive Easement:

Prescriptive easements are essentially obtaining an easement through adverse possession and are unfavorable by law. To obtain this type of easement, the person claiming the easement must prove he or she has used the easement for at least 10 years and the use was open and notorious, continuous, exclusive, and adverse.

What does that mean?

“Exclusive” means only the person seeking the easement has made this use. For example, if any other person used the road, this element is not satisfied. For the use to be adverse or hostile, the landlocked property owner, or the prior owners utilizing the easement for the required 10-year period, must prove they 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, an easement by prescription will not be recognized.

Therefore, if a landlocked property owner can prove the 10 years of use was open and notorious, continuous, exclusive, and adverse in court, he or she may be able to obtain a legal prescriptive easement to file in the county deed records.

Easement by Estoppel:

An easement by estoppel exists when one person acts in reliance on being told an easement exists. For example, a buyer purchases a landlocked property and starts building a house based upon a promise from the neighbor that the buyer can cross his private land to access the property. Later, the neighbor denies the promised access. This could potentially create an easement by estoppel. 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.

The three required elements for easement by estoppel are:

  1. A representation
  2. Belief in the representation
  3. Reliance on the representation

As you can see, buying a landlocked piece of property is far from ideal in Texas. It’s important to remember that there is no automatic right to access private property to gain access to your landlocked parcel. However, there are numerous options landowners can consider in obtaining legal access to their landlocked property. Be sure to contact the Kazi Law Firm if you find yourself in such a situation.

I built my law practice on the premise of being a life raft in a sea of sharks. I want to be an advocate for those that have been wronged and are too intimidated to seek help. My firm is here to explore your options, guide you through your legal journey, and give you that safe space to ask questions! There’s no such thing as a stupid question…Only the ones you don’t ask. So, my question to my clients is not “do you have any questions?” But rather “what questions do you have?”

As always, the Kazi Law Firm is standing by to help you in your time of need. Don’t hesitate to contact us today. We specialize in real estate law, landlord-tenant disputes, immigration, and wills & estate planning. Family is at the core of our practice. Just as we treat our family with respect and understanding, we treat yours. Come join the Kazi Law Firm family today!

Why swim alone in shark-infested waters when you don’t need to?