Ingress/Egress Easement issue with neighbor

[dpry]

What is the name of your state (only U.S. law)? TX

We have an easement and right of way to access our property. This easement allows ingress/egress for all landowners in our neighborhood. However, it does not specify who is to maintain the roadway (dominant estate or servient estate). At one time this was a two lane gravel road, but we live in a very hillly are with drainage/washout issues. It is now a one lane dirt road in very bad disrepair. When it rains the road has huge washouts, when it doesn't rain the road turns to sugar sand and you either fishtail through the sand or get stuck if you have to stop. My car also bottoms out on the sand buildup in the middle of the road. My husband owns a tractor so he tries to maintain the road when the conditions get bad. The neighbor of the servient estate (who incidentally must be a renter or heir, because the land is still in the original owner's name and he is deceased) calls the sheriff on my husband every time he tries to maintain the road. Their issue is that their driveway runs perpendicular to the easement road and there is a large dropoff at the end of their driveway down to the road. They say it gets worse if he scrapes the sand off of the road. Their driveway is actually about 20 foot into the access easement and was not constructed properly. They threaten to put a gate up and lock us out for maintaining the road. Since it isn't specified in the easement, are we allowed to maintain this road to prevent further damage to our vehicles?

One more note...apparently at one time there was a homeowner's association and that was supposed to take care of road repair, but it has long since dissolved. Thanks!

 

[TheGeekess]

What is the name of your state (only U.S. law)? TX

We have an easement and right of way to access our property. This easement allows ingress/egress for all landowners in our neighborhood. However, it does not specify who is to maintain the roadway (dominant estate or servient estate). At one time this was a two lane gravel road, but we live in a very hillly are with drainage/washout issues. It is now a one lane dirt road in very bad disrepair. When it rains the road has huge washouts, when it doesn't rain the road turns to sugar sand and you either fishtail through the sand or get stuck if you have to stop. My car also bottoms out on the sand buildup in the middle of the road. My husband owns a tractor so he tries to maintain the road when the conditions get bad. The neighbor of the servient estate (who incidentally must be a renter or heir, because the land is still in the original owner's name and he is deceased) calls the sheriff on my husband every time he tries to maintain the road. Their issue is that their driveway runs perpendicular to the easement road and there is a large dropoff at the end of their driveway down to the road. They say it gets worse if he scrapes the sand off of the road. Their driveway is actually about 20 foot into the access easement and was not constructed properly. They threaten to put a gate up and lock us out for maintaining the road. Since it isn't specified in the easement, are we allowed to maintain this road to prevent further damage to our vehicles?

One more note...apparently at one time there was a homeowner's association and that was supposed to take care of road repair, but it has long since dissolved. Thanks!

Texas Property Code - Section 23.006. Access Easement For Partitioned Property

Legal Research Home > Texas Laws > Property Code > Texas Property Code - Section 23.006. Access Easement For Partitioned Property

§ 23.006. ACCESS EASEMENT FOR PARTITIONED PROPERTY.
(a) Unless waived by the parties in an action to partition property under this chapter, the commissioners appointed to partition property shall grant a nonexclusive access easement on a tract of partitioned property for the purpose of providing reasonable ingress to and egress from an adjoining partitioned tract that does not have a means of access through a public road or an existing easement appurtenant to the tract. The order granting the access easement shall contain a legal description of the easement.
(b) Unless waived by the parties in writing in a private partition agreement, the property owner of a partitioned tract that has a means of access through a public road or an existing easement appurtenant to the tract shall grant in the private partition agreement a nonexclusive access easement on the owner's partitioned tract for the purpose of providing reasonable ingress to and egress from an adjoining partitioned tract that does not have a means of access through a public road or an existing easement appurtenant to the tract.
(c) The access easement may not be a width greater than a width prescribed by a municipality or county for a right-of-way on a street or road. The access easement route must be the shortest route to the adjoining tract that:
(1) causes the least amount of damage to the tract subject to the easement; and
(2) is located the greatest reasonable distance from the primary residence and related improvements located on the tract subject to the easement.
(d) The adjoining tract owner who is granted an access easement under this section shall maintain the easement and keep the easement open for public use. Added by Acts 2001, 77th Leg., ch. 647, § 1, eff. Sept. 1, 2001.

http://law.onecle.com/texas/property/23.006.00.html

 

[154NH773]

I'm don't think that 23:006 would apply to properties already served by an appurtenant easement (See section "a").

In general, you have a right to maintain the right of way so that you can continue access. The servient estate may not block your access. If your maintenance of the section in front of their driveway causes a problem, it might be easier to just skip that small section when grading the road. You could make an issue of their driveway actually extending into the right of way, but ultimately it might cause a court action that would be expensive for all involved.

Read the conditions of the easement language that applies to your deed and theirs. Are there any requirements for maintenance, and membership in a HOA. Have a title company research the easement issue for all properties involved. It is something you can also do if you understand how.

 

[justalayman]

I'm don't think that 23:006 would apply to properties already served by an appurtenant easement (See section "a")..

Actually, that entire section does not appear to apply at all since it applies to "partitioned" i.e. court separated parcels of property.

I have not researched Texas specifically but in most situations and states, unless there is agreement otherwise or specific language within the creating document addressing the matter, the dominant tenants (including the possible servient tenant if they also use the easement) are not only able but actuall responsible for maintaining the easement. In some states the dominant tenant is liable for the costs to maintain the easement but with the liability of the actual work being on the servient tenants shoulders.

 

[FarmerJ]

Have you been able to verify that the former HOA was legally dissolved or did someone tell you that ? I would say to re check even if that means hiring a title search firm to go over your homes title records and if they do indeed find that HOA so called restrictions / covenants are still there But all these other homes are refusing to participate and all have been ignoring the covenants etc then id say your next option would be to use the links above and find a real estate attorney who can give you some idea of what to expect should you have to sue the others , I cannot see where just one property would have been let out of a HOA so if your property is still legally tied to the original HOA then ill bet the others are too and that means that they could be sued for a share of maint cost.

 

[dpry]

Thank you

Thank you for all of the replies. There is no specific language in the easement regarding maintenance or HOA. We have taken it upon ourselves to maintain the road. I do not believe that the HOA was ever legally dissolved. The gentleman who started the subdivision ran the HOA and maintained the road. He passed away many years ago and nothing has been done since. We are not looking for any monetary reimbursement for repairing the road, I just wanted to make sure that we have the right to maintain it without interference of the servient estate.

We were actually able to repair the road to some degree last week without interference. I called the sheriff's department at let them know we would be doing maintenance and they would probably receive a call. I'm not sure if they decided not to call this time or the sheriff's department told them to get a life, but we didn't have any issues. We now keep a copy of the easement and the texas property code in my husband's tractor.