Definition

An easement is an interest in land by one person which grants that person the right to have possession of land of another person which

• entitles the owner of the interest to a limited use or enjoyment of the land in which the interest exists;
• entitles the owner to protection as against third persons from interference in such use or enjoyment;
• is not subject to the will of the possessor of the land;
• is not a normal incident of the possession of any land possessed by the owner of the interest; and
• is capable of creation by conveyance.

Land in Respect To Easements

The dominant tenement is the land to which an easement is attached or the service is owed. The servient tenement is the land which is burdened with a servitude. When one has an easement over adjoining land, this land becomes the dominant tenement.

If an easement is granted to the owner of a tract of land and the grantee later acquires adjoining land, the grantee personally may use the easement for access to both tracts. However, if the grantee begins to sell all or part of either of his tracts, the purpose of the easement may be exceeded. This is called “over burdening the easement.”  Do not issue without discussing with a Texas Underwriter.

The almost infinite factual variations permit numerous classifications of easements. Easements may be divided into two broad classes: easements appurtenant and easements in gross.

The classifications of easements having frequent significance in connection with a title insurance policy are those based on:

• The duration of the interest.
  
  
• The affirmative or negative character of the acts privileged thereby.
  
  
• The presence or absence of a dominant (as well as a servient) estate

Concept

An easement appurtenant is created for the benefit of another tract of land and cannot exist separate and apart from the particular land to which it is annexed.

Characteristics

An easement appurtenant requires two distinct parcels of land owned by two different owners:

• The dominant estate to which the right belongs.
  
  
• The servient estate upon which the obligation rests.

When granted or established, the same person must have unity of title to both the easement and the dominant estate.

It cannot exist separate and apart from the dominant estate to which it is annexed.

If the easement is reciprocal, the same tract partakes of the condition of dominant and servient.

It runs with the land and does not need to be mentioned in any instrument of conveyance.

It inures to the benefit of the dominant estate and cannot be separated from the land to which it is annexed.

An easement in gross is an easement that is not appurtenant to any estate in land.

The easement in gross is a mere personal right to use another's land; it is not supported by a dominant estate, but is attached to and vested in the person to whom it is granted.

NOTE: As a general rule, easements in gross are not insurable; however, exceptions to this rule includes  public utility easements and easements under Tex. Nat. Res. Code ch. 183.

A public utility easement may be insured without also insuring the title to the dominant estate provided that it is a right-of-way that forms or will form a part of a predetermined right-of-way acquired or to be acquired by the utility company.

Please contact a Texas underwriter if you are asked to insure a conservation easement under Tex. Nat. Res. Code ch. 183.

See also Texas Bulletin TX2015004 – LEGISLATIVE UPDATE 2015 Amends the Transportation Code to Require that an Order of a County State Whether a Public Utility with the Right if Eminent Domain Continues to have Rights if the Right of Way is Abandoned

A license is a grant of permission or privilege to perform an act or series of acts on land which belongs to another and in which the licensee has no interest, estate, or possessory right. The licensed act or series of acts is one which would amount to a trespass on the licensor's land but for the license.

Underwriting Standard: A license may, with underwriter approval, be used to insure access over railroads or public rights of way.

A license does not create an interest in the land in favor of the licensee; it is a personal right, of a temporary character, and it may be revoked at any time by the licensor, subject to the terms of the document creating the license.

An easement always implies an interest in the land in and over which it is to be enjoyed; it is more or less a permanent right; its ownership changes with the ownership of the land to which it belongs; and it cannot be revoked. Finally, a license may be created by parol or by an act of the licensor sufficient to show the licensor's assent, whereas an easement can be created only by grant, or by implication or prescription (each of which presupposes a grant).

Railroad Right-Of-Way/Easements. See Sec. 17.00 for discussion of this point.

NOTE: EXCEPT AS SET OUT ABOVE, DO NOT INSURE LICENSES.

A profit a prendre is the right to take part of the soil or produce of land (soil, gravel, oil, gas, minerals, timber, etc.) owned by someone else, or the right to participate in the profits thereof.

It is distinguishable from an easement, since one of the features of an easement is the absence of all rights to participate in the profits of the land charged with it.

Many transfers historically considered to be profits a prendre are denominated as deeds or leases, such as timber deeds, timber leases, or gravel leases. These rights are insurable on the same basis as easements in gross except when they cover oil, gas, or other minerals.

In General

Any recorded easement that affects the premises in question must be shown as a title exception unless the easement is:

• Properly released of record.
  
  
• Judicially terminated or extinguished.

For more information refer to "Waiving an Easement Exception", below.

Basic Elements of an Easement Exception

Any easement exception must contain the following:

• Nature or purpose
  
  
• Location
  
  
• Recording data (Book and Page) (Volume and Page) and if too comprehensive or complex, the following phrase:

  "Terms and provisions of"

Basic Methods

The basic methods of waiving an easement exception are as follows:

• The recording of a valid abrogation agreement.
  
  
• The recording of a proper release.
  
  
• A nonappealable determination entered by a court of competent jurisdiction ordering the termination, extinguishment, or invalidity of the easement.

However, it is not always an easy task to determine the validity or effect (for the purposes of waiving the exception) of these instruments. It is often necessary for lienholders and other interested parties to join in the execution of these instruments or to be named as defendants in the judicial proceedings. Lack of compliance with these requirements might impede the waiving of an easement exception unless duly executed releases are later obtained from the necessary parties.

Doctrine Of Merger

Unless you have received written approval from Texas Underwriter, the doctrine of merger should not be relied upon when asked to waive an easement which appears as an easement exception to the title. This doctrine states that when the lessor and the lessee are the same, the lease merges into fee simple title.

A proper instrument showing the acquiescence to the merger must be made a matter of record before the exception is waived.

Abandonment

Physical abandonment should not be relied upon when waiving an easement which appears as an exception to the title. Affidavits from knowledgeable people or a determination that a pipeline has been removed would be examples of proof of abandonment.

Other Occurrences

The happening of any of the following occurrences should not be relied on as the sole basis for the waiving of an easement which appears as an exception to the title:

• Expiration of the term or duration.
  
  
• Occurrence of stated event;
  
  
• Completion of purposes;
  
  
• Violation of conditions;
  
  
• Change of conditions;
  
  
• Nonuser;
  
  
• Inconsistent Acts;
  
  
• Adverse possession;
  
  
• Destruction or alteration of building;
  
  
• Sale for taxes.

Possibility of An Easement Being Extinguished By the Foreclosure of a Prior Deed of Trust

This possibility should not be relied upon for the purposes of waiving an easement which appears as an exception to the title.

Possibility of an easement being extinguished by the foreclosure of later real estate tax lien.

An easement on or over the servient estate will be extinguished if a tax sale of the servient estate occurs and the prior easement is not excepted. However, in no state should this rule be relied upon in waiving easements that encumber the insured land. Sec. 32.05 Texas Tax Code provides that a property tax lien has priority over easements recorded after January 1 of the year in which the tax lien arose.

Checklist of items to be considered when insuring an appurtenant easement:

NOTE: Some items might need special consideration or additional treatment.

Easement Must Be Appurtenant

The instrument to be insured must be an appurtenant easement.

Licenses, profits a prendre, and easements in gross are generally uninsurable.

Specific Purpose

The easement must have been created for a specific purpose (driveway, ingress and egress, party wall, etc.). A plain or nonspecific purpose easement is rarely insurable.

The purpose of the easement, as stated in the easement grant, must be made a part of the easement description.

In the event that the exact language stated in the easement grant cannot be used, the purpose of the easement must be described as follows:

For the purposes described in said (instrument) (easement).

Exclusive or Nonexclusive

Exclusivity, if claimed, must have been specifically stated in the instrument that created the easement.

In any other case, the easement must be referred to as a nonexclusive easement.

Easement Must Have Been Created By A Written Instrument

Appurtenant easements cannot be created by parol. While it is possible to create an easement appurtenant by prescription, it is not insurable without a court decree.

The Instrument Creating The Easement Must Have Been Properly Executed

The grantors must have possessed full legal capacity at the time of the execution of the easement.

The Instrument Creating The Easement Must Have Been Executed By All The Owners Of The Servient Estate At The Time Of The Execution

A grantor cannot create an easement with respect to land which the grantor does not own. Consequently, one who has an undivided interest as tenant in common or is a concurrent owner cannot create an easement effective as to the shares of any other tenant in common or concurrent owner.

Joinder Of The Spouses

Proper joinder or consents from spouses are required and must be filed for record.

Joinder Of The Lienholders

If all those parties holding interests of record against the servient parcel have not joined in the execution of the instrument that created the easement, proper joinder or consents from the parties must be filed for record, or an exception must be made to the rights of the non-joining parties.

Acknowledgment

The instrument creating the easement must be properly acknowledged.

Recording

The instrument creating the easement must be properly recorded.

Chains Of Title To Be Examined

Generally, two different chains of title need to be examined: one pertaining to the dominant estate; another pertaining to the servient estate.

In some cases, it may be necessary to show two sets of exceptions: one in relation to the dominant estate; another in relation to the servient estate.

Ownership Of The Dominant Estate And The Servient Estate At The Time Of The Creation Of The Easement

Ownership in different parties, at time of the creation of the easement is acceptable.

Ownership in the same party, but severed at the time of the creation of the easement, is acceptable.

Ownership in the same party when the easement is created by a mortgage is acceptable.

However, if ownership is in the same party and not severed at the time of the creation, an easement appurtenant is not created for insuring purposes.

The Easement Grant Must Have Run To The Owners Of the Dominant Estate In The Same Manner In Which They Hold Title To the Estate

Condition Of The Servient Estate At The Time Of The Creation Of the Easement

All the defects, liens, and encumbrances of record affecting the servient estate at the time of the creation of the easement must be shown (if still in existence) as exceptions affecting the servient estate.

Condition Of The Servient Estate Subsequent To The Creation Of The Easement

In order to determine that the easement has not been terminated either by voluntary release or by merger and also to determine whether it is subject to the payment of any taxes and assessments, the examination of the easement premises must be continued to the date of the policy which will insure the ownership of the easement. Any unpaid taxes or assessments affecting the easement premises, as of the date of the policy, must constitute a Schedule B exception unless the tax assessment of the easement premises specifically excludes the easement and the easement is assessed as a part of the benefited land or state law provides that the enforcement of taxes and assessments on the easement premises will not destroy the easement.

Reciprocal Easement

If the easement is reciprocal, that is, if the dominant estate is also a servient estate, a proper exception must be made in Schedule B of the policy.

Necessity For Exception In Connection With The Easement To Be Set Forth In Schedule B

Any unusual burden, qualifications, or restriction contained in the easement grant should be specifically set forth in Schedule B of the policy.

Form Of Creation Of The Easement

Express grant

Deed of conveyance

Deed reservation

Agreement

Mortgage

Plat dedication

Condemnation

Prescription

Implication

Necessity ? Underwriting Standard: Remember, the tract requiring the easement by necessity must not have had access to a public road at the time it was created, giving rise to the necessity.

Depending upon the form of creation of the easement, it might be necessary to ascertain compliance with some other additional requirements. For example, easements by necessity or implication must have been established through valid and final legal proceedings. We do not insure easements by prescription, implication, or necessity unless recognized by a final court decree of competent jurisdiction.

Easement Created By A Mortgage

An easement may be insured in a loan policy when the only grant of the easement is by the mortgage itself. This can only occur when the owner of the benefited land, which is the one to be mortgaged, is also the owner of the easement premises. Then, by the terms of the mortgage, the owner establishes an easement over the easement premises for the benefit of the mortgaged premises. This easement will inure to the benefit of any purchaser of the benefited land at any foreclosure sale of the mortgage.

Easement Created By Reservation Of Grant In Favor Of A Third Person

This situation occurs when the owner conveys the premises and attempts to reserve an easement over the premises for the benefit of a third person (an owner of adjoining land). Any interest created in this manner is uninsurable.

Has The Easement Been Created For The Benefit Of A Smaller Parcel Of Land?

An appurtenant easement will not benefit any contiguous land acquired by the owner of the dominant estate subsequent to the creation of the easement.

The Easement Is Unobstructed And In Use

There is no information, recorded or unrecorded, to the contrary.

Factors Or Events That Might Have Resulted In The Termination Of The Easement

Expiration of its duration (depending upon the terms of its creation)

Satisfaction of condition or happening of contingency

Release deed

Abrogation agreement

Merger

Foreclosure of a senior lien on the servient tract

Abandonment

Termination by operation of law

Possible termination by an adverse possession

Cessation of its necessity

Condemnation

Sale for taxes (opinions are divided)

Has The Easement Been Properly Described In The Commitment?

Has The Easement Been Properly Described In The Policy?

• Proposed easement not yet in final form.
  
  
• Easement not properly located.
  
  
• Rights of others: Nonexclusive easement
  
  
• Easement for street purposes.
  
  
• Easement for road purpose.
  
  
• Reciprocal easement (large exception).
  
  
• Reciprocal easement (short exception).
  
  
• Terms, provisions, and condition of the easement.
  
  
• Leasehold estate and appurtenant easement to be insured.
  
  
• Public utility easement.
  
  
• Uninsurable appurtenant easement is included in the legal description of the property to be insured.
  
  
• Easement was created for the benefit of a smaller parcel of land.

In order to insure an easement estate as a part of the legal description in Schedule A, title agents must have a good metes and bounds description that is locatable on the ground. Additionally, Schedule B of the policy should contain an exception as to "the terms and conditions...of the easement insured? shown on Schedule A. The standard exceptions remain unchanged.

Title to the easement must be checked as well as ad valorem taxes for the year in which the easement was created and all prior years. Under Rate Rule 3b, an Owner Policy covering an easement estate must be written for the amount of value of the easement at the time the policy is issued.

Forms:

Example TX Commitment - Easement of Record 1;
Example TX Commitment - Easement to be Established - Fee and Proposed Easement Parcels are Owned by the Same Party 2;
Example TX Commitment - Easement to be Established - Fee and Proposed Easement Parcels are Owned by the Same Party 3.

Easement of record.

Easement to be established. Fee and proposed easement parcels are owned by the same party.

Forms:

Example TX Policy Form - Insuring One Fee Parcel and One Easement Estate 1;
Example TX Policy Form - Insuring One Fee Parcel and Two Easement Estates 1;
Example TX Policy Form - Insuring Two Fee Parcels and One Easement Estate 1;
Example TX Policy Form - Insuring Two Fee Parcels and Two Easement Estates 1;
Example TX Policy Form - Insuring One Fee Parcel, One Leasehold Estate, and One Easement Estate 1.

Insuring One Fee Parcel and One Easement Estate.

Insuring Two Fee Parcels and One Easement Estate.

Insuring Two Fee Parcels and Two Easement Estates.

Insuring One Fee Parcel, One Leasehold Estate, and One Easement Estate.