Private easement

[jmorris]

Don't think that's the right term but consider this.

Let's say you've got some remote property of considerable acreage that you rarely visit. One day you decide to check out a pond on it and you find that people have been fishing in it, evidently for years. In fact, they even put a gate in the fence nearby so they can drive to it and a pier on the pond. You put a lock on the gate to keep them out. The people then sue you on the basis that they've been doing this for years so they've established a valid easement. The property is not posted.

So is this a valid argument in Texas? I know there was something similar in CA where the (IMHO) trespassers won.

Thanks

[The Annoyed Man]

Don't think that's the right term but consider this.

Let's say you've got some remote property of considerable acreage that you rarely visit. One day you decide to check out a pond on it and you find that people have been fishing in it, evidently for years. In fact, they even put a gate in the fence nearby so they can drive to it and a pier on the pond. You put a lock on the gate to keep them out. The people then sue you on the basis that they've been doing this for years so they've established a valid easement. The property is not posted.

So is this a valid argument in Texas? I know there was something similar in CA where the (IMHO) trespassers won.

Thanks

My parents bought a piece of property on the coast a little up PCH from Malibu township, on Point Dume, when I was in high school. They eventually built their dream house on it. The property was 1.2 acres on the cliff top next to Zuma Beach, and they owned 108 ft of beachfront. Some of the other homes along the cliff had private access down the cliff-face to the beach, but not all of them. My parents elected not to do it. When I asked why, my dad told me that people disrespect your property and cross it, climbing over your gates, etc., to use your private stairs, and pretty soon it is a public easement and you lose the right to control access across your property. When this happens to someone, invariably their loss to theft rate goes up, their homeowner's insurance rate goes up, and their property value goes down. Never a good thing.

My dad died in that house, which he designed, and he and my mom built. It is currently leased out to a Hollywood actor, and my mother has moved into a condo in Santa Monica.

[G.A. Heath]

I find it doubtful that fishing in a private pond without permission is a valid basis for an implied easement. Implied easements can be created in a number of ways, I think its only three: #1. By Necessity, meaning they must have it in order to conduct their lives, business, or access to their property. #2. By grant, meaning you or another authority grant them the easement. and #3. By reservation meaning that there was some pre-existing condition prior to the sale/purchase of the property.

They can claim to have made permanent improvements to the property (the dock and the pier), and the land owner can claim vandalism (destruction of the fence to add the gate, the unauthorised pier, and probably the road they now use to access the pond). The fence itself serves as posting the property in Texas, meaning that they trespassed in order to access the pond. In addition to that they destroyed a section of the fence in order to install the gate so they knew it was there. Basically they are saying "We have an easement because we have repeatedly violated Texas Penal Code 30.05(b)(2)(B) for years with an untold number of violations."

[Thomas]

Record everything. Texas is a one-party state, so you don't have to tell them you are recording them. It might come in handy if you go to court and they change their story.

[jmorris]

Record everything. Texas is a one-party state, so you don't have to tell them you are recording them. It might come in handy if you go to court and they change their story.

I would if it was real but it is a hypothetical situation.

Ah! Thank TAM. Don't know why I couldn't think of public easement.

G. A. Is that the case in Texas or generally? I'm still trying to locate the CA case but as I remember it was something similar, they were using the land for recreational purposes.

[Keith B]

The way I have always seen easements interpreted is they are to allow someone to cross your land to get to their land so you can't land-lock it. That is owner of one has to allow the owner or designated party of the other to cross.

An example is land that we own in Missouri. It borders National Forest. We have to allow Forest Service personnel or people doing work for them to have an easement, but do NOT have to allow private individuals an access across our land to the National Forest as there are other entrance points they can use, even though they are 2 miles away.

[G.A. Heath]

G. A. Is that the case in Texas or generally? I'm still trying to locate the CA case but as I remember it was something similar, they were using the land for recreational purposes.

I think it applies to Texas, but its been a few years since I discussed it with an attorney. My advice is to talk to an attorney who actually knows the law.

[philip964]

Has to be open, hostel and for 30 years (I thought 10).

http://www.escrowhelp.com/articles/20031104.html" onclick="window.open(this.href);return false;

Normally to me they would have to own the lake. And the prescriptive easement would be the road to their lake across your property.

Might also look up posted no trespassing laws.

[Ameer]

My parents bought a piece of property on the coast a little up PCH from Malibu township, on Point Dume, when I was in high school. They eventually built their dream house on it. The property was 1.2 acres on the cliff top next to Zuma Beach, and they owned 108 ft of beachfront. Some of the other homes along the cliff had private access down the cliff-face to the beach, but not all of them. My parents elected not to do it. When I asked why, my dad told me that people disrespect your property and cross it, climbing over your gates, etc., to use your private stairs, and pretty soon it is a public easement and you lose the right to control access across your property. When this happens to someone, invariably their loss to theft rate goes up, their homeowner's insurance rate goes up, and their property value goes down. Never a good thing.

My dad died in that house, which he designed, and he and my mom built. It is currently leased out to a Hollywood actor, and my mother has moved into a condo in Santa Monica.

I think there might be a few differences between Texas law and California law but cool story bro.

[stroo]

I don't know Texas law on this point but in some states you can establish an easement or even ownership of the property through adverse possession. Basically it has to be open - placing the gate in the fence probably qualifies, hostile - again placing the gate might qualify, and for a long period of time.

I think that is the only possible way to establish the easement given your facts, and I am not sure that works under your facts or Texas law.

[RPB]

There are different types of easements
Google "types of easements in Texas"


There are also different types of licenses


and what you need to worry about probably is .... Adverse possession
Google "Texas adverse possession"

The statute governing the rules of adverse possession is Texas Civil Practices & Remedies Code Sec.16.021 and those following
http://www.statutes.legis.state.tx.us/D ... htm#16.021" onclick="window.open(this.href);return false;

Note that there are differing time periods/Limitations periods and most require title/color of title recorded deed etc, except 25 year under Sec. 16.027.

You putting a lock on it was probably a good thing in my layman's opinion. It interrupted their continuous use ("Peaceable possession") and showed you "exercise dominion over" the property (Sec. 16.029).

I'm not a lawyer and not a practicing Real Estate Broker any more.

Here's another link for you though http://www.lonestarlandlaw.com/Adverse.html" onclick="window.open(this.href);return false;

Anyway, Adverse Possession is probably what you were thinking.


As far as Easements, yeah, an Easement by prescription/necessity is one type where you have to allow access across the frontage lot to a landlocked owner if you sell a lot behind another lot ... My brother bought such a place, hard to get a mortgage on landlocked property ... and where the "trail-driveway" goes has varied over the years until he found one way he liked in the 1980s and drives that path every day now (it's about a mile long path across who knows whose properties.... (there's no road going to his house, never has been) Someone else bought a property half way up his path/driveway and put speedbumps in the dirt trail, but they soon disappeared, as did the people, who I assume decided to move to the city since UPS, Mailmen, and ambulances can't find nor get back there.

[Sidro]

In Texas the owner of a landlocked property must be allowed access to the property by the surrounding property owner. That access is determined legally as the closest access to the landlocked property in relation to the Courthouse of the county the property is located in. So if that property is located in county A and access to that property by private road thru surrounding property is ten miles from closest point to Courthouse in county A that would be the easement for access. If the property in county A has one mile only of private property to cross in order to access it but that access starts in county B access from that direction can be denied from surrounding property. Access is always figured as closest distance to Couthouse of the county the property is in.

[Tallinthesaddle]

Two things here: Adverse Possession and a Prescriptive Easement

Sounds like you are talking about the use of the property by another who doesn't own title. That would be adverse possession. Unless the fence is next to a public right-of-way or the person using your property is an adjoining neighbor, then the person using your property must be trespassing to get to your property. If this person does not have a private easement from your neighbor, then the person has no right to be doing that. He could then claim he has a prescriptive easement. There are instances of property being sold without an access easement or road dedication, but state law has changed that. I spend about 24 years of my life as a right-of-way agent and saw this a few times on older tracts of land.

One of the main caveats of adverse possession is that the person claiming to now own the property must also have paid the taxes on it.
Has the original owner kept up with paying the taxes on the tract of land? Usually after a few years of deliquency, a taxing unit or appraisal district will put the property up for sale just to pay the taxes. There are instances where people have observed properties in a declining state and stepped in and started paying the taxes and improved it just to get title to it especially if the owners are not local. However, possession doesn't happen overnight.

The state law is very particular about another person gaining title to another's property. If the property has improvements and a water source on it as you have described, then it is worth some money and the services of a real estate attorney would appreciated. That is one of the few kinds of lawyers I can appreciate.

[mojo84]

I recommend you get a GOOD real estate attorney that has experience with adverse possession cases. This area of real estate law is very challenging and the fact they have had access for quite some time is concerning. Wish you the best on this. Also, the longer they string the case out, the better their claim becomes. It's a crazy part of real estate law with which you are dealing.

[Dan20703]

Don't think that's the right term but consider this.

Let's say you've got some remote property of considerable acreage that you rarely visit. One day you decide to check out a pond on it and you find that people have been fishing in it, evidently for years. In fact, they even put a gate in the fence nearby so they can drive to it and a pier on the pond. You put a lock on the gate to keep them out. The people then sue you on the basis that they've been doing this for years so they've established a valid easement. The property is not posted.

So is this a valid argument in Texas? I know there was something similar in CA where the (IMHO) trespassers won.

Thanks

Have you been fishing on my property?