Easement Agreement
(TX)

Summary

This easement agreement template provides for an express grant of an easement in real property in Texas. This template includes practical guidance, drafting notes, and alternate and optional clauses. An easement is an interest in the real property of another that gives the grantee a right to use the grantor's land in some way. Note that an easement provides use rights, not ownership rights or an ownership interest in the land. The land benefitted by the easement is called the dominant estate or dominant tenement, and the land burdened by the easement is called the servient estate or servient tenement. There are various methods of creating an easement under Texas law, including by express grant, implication, necessity, estoppel, and prescription. See 5 Texas Real Estate Guide § 101.03 and § 101.05 and Texas Transaction Guide--Legal Forms § 75.60. Further, an easement may be either appurtenant or in gross. An easement appurtenant attaches to the dominant tenement and runs with the land (i.e., it passes with the conveyance of the land to which it is appurtenant). An easement in gross, on the other hand, attaches to the easement owner and does not benefit any real property. Counsel should be aware that Texas law does not favor easements in gross. Therefore, Texas courts will not construe an easement to be in gross when it may fairly be construed as appurtenant. See 5 Texas Real Estate Guide § 101.03. Since an easement is an interest in land, an express easement is subject to the statute of frauds under Texas law. The grant of an easement should therefore be drafted and executed with the same formalities as a deed. See 5 Texas Real Estate Guide § 101.03. Note that while Texas law requires the parties to use words of conveyance, it does not require the use of the word "easement"; any language that clearly shows the intention to grant an easement is sufficient. See Texas Transaction Guide--Legal Forms § 75.63. However, for purposes of clarity, the grantee's counsel should aim to include with specificity all possible acts that the grantee may desire to carry out in connection with the easement. Counsel should note that this template is not for use for an easement by prescription or by implication. In Texas, a party claiming an easement by prescription must show use of the easement that is adverse, open and notorious, under hostile claim of right, exclusive, and uninterrupted and continuous for at least 10 years. See Allen v. Allen, 280 S.W.3d 366 (Tex. App. 2008). Implied easements in Texas may arise from, among other things, necessity or prior use. See 5 Texas Real Estate Guide § 101.03. This template assumes: • The grant easement is appurtenant and will run with the land • The servient tenement's attorney is drafting the agreement • The parties agree as to the precise easement location and • The parties have obtained a survey of the easement area For further information on easements under Texas law, see Texas Transaction Guide--Legal Forms §§ 75.60 – 75.69 and 5 Texas Real Estate Guide § 101.01 et seq. For further guidance on drafting and negotiating easement agreements, see Easement Agreement Basics.