Form 15-1

This form is a template for drafting an easement appurtenant. The easement purpose has been left blank and should be inserted before the document is executed. This form may be used to grant an ease­ment across one tract of land to provide ingress to and egress from another tract of land. For further discussion, see sections 15.1:5 and 15.4:3 in this chapter.

Easement Appurtenant

Notice of confidentiality rights: If you are a natural person, you may remove or strike any or all of the following information from any instrument that transfers an interest in real property before it is filed for record in the public records: your Social Security number or your driver’s license number.

This Easement Appurtenant (“this Agreement”) is executed by the Grantor and Grantee identified in section A below.

NOW, THEREFORE for $100 and other good and valuable consideration for each of the Parties, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

A.Basic Information and Provisions

A.1.Effective Date: [date]

A.2.Grantor’s Information

A.2.a.Grantor: [name of grantor], the person executing this instrument as grantor (which person including such person’s heirs, successors, and assigns, referred to herein jointly as the “Grantors” and severally as a “Grantor”)

A.2.b.Grantor’s Mailing Address: [address of grantor]

A.2.c.Grantor’s Property: the real property owned by Grantor, described and so desig­nated in the attached Exhibit B—Grantor’s Property Description

A.2.d.Easement Area: the Easement Area described on Exhibit C—Description of Easement Area on Grantor’s Property

A.2.e.Exceptions to Grantor’s Title Warranty: [exceptions as described in the attached Exhibit E—Exceptions to Grantor’s Title Warranty/none]

A.3.Grantee’s Information

A.3.a.Grantee: [name of grantee], the person executing this instrument as grantee (which person including such person’s heirs, successors, and assigns, referred to herein jointly as the “Grantees” and severally as a “Grantee”). While a Grantee is the owner of all or any part of the Dominant Estate Property, the Grantee is sometimes referred to herein as the “Owner of the Dominant Estate Property.”

A.3.b.Grantee’s Mailing Address: [address of grantee]

A.3.c.Grantee’s Property: the real property described and so designated in Exhibit D—Grantee’s Property Description (“Grantee’s Property” also being and referred to as the “Dominant Estate Property”)

A.4.Exhibits and Addendums.      Attached to this Agreement are the following Exhibits and Addendums, which are incorporated herein by this reference, and which are part of this Agreement:

Exhibit A—Definitions

Exhibit B—Grantor’s Property Description

Exhibit C—Description of Easement Area on Grantor’s Property

Exhibit D—Grantee’s Property Description

Exhibit E—Exceptions to Grantor’s Title Warranty

A.5.Definitions.      Capitalized terms used in this Agreement are in part defined in Exhibit A—Definitions. Other capitalized terms are defined in the text of the Agreement.

A.6.Easement Purpose and Permitted Use.      This Easement is granted for [insert general descriptor identifying the purposes of the easement, e.g., access/utilities] purposes further described in section B.2.

B.Grant of Easement

B.1.Grant of Easement.    Grantor, for the Consideration and subject to the Excep­tions to Grantor’s Title Warranty, grants, sells, and conveys to Grantees an easement on (meaning across, along, on, over, under, and between) the Easement Area for the Easement Purpose and for the benefit of the Dominant Estate Property, together with all and singular the rights and appurtenances thereto in any way belonging (collectively, the “Easement”), to HAVE AND TO HOLD the Easement to Grantees forever. [Include if applicable: The Grantor binds Grantors to WARRANT AND FOREVER DEFEND the title to the Easement in Grant­ees against every person whomsoever lawfully claiming or to claim the Easement or any part thereof, except as to the Exceptions to Grantor’s Title Warranty [include if applicable: , to the extent that such claim arises by, through, or under Grantors but not otherwise]]. [Include if applicable: All warranties that might arise by common law and the warranties in section 5.023 of the Texas Property Code (or its successor) are excluded.]

B.2.Easement Purpose and Permitted Use.      The Easement is granted to provide [include as applicable, e.g., pedestrian/pedestrian and vehicular/pedestrian and car and light-truck vehicular] ingress to and egress from (“access”) the Dominant Estate Property to and from [describe access], as indicated on Exhibit C—Description of Easement Area on Grantor’s Property (the “Easement Purpose”) and as further defined and limited in this Ease­ment (the “Permitted Use”). [Include any additional easement purposes as applicable.]

B.3.Character of Easement.      The Easement is appurtenant to and runs with the Dominant Estate Property, whether or not the Easement is referenced or described in any con­veyance of all or any portion of the Dominant Estate Property. The Easement is [exclusive/nonexclusive] and irrevocable. The Easement is for the benefit of any and each Grantee who at any time is the owner of the Dominant Estate Property or any interest in the Dominant Estate Property. [Include if applicable: The Easement is to be uninterrupted.]

B.4.Duration of Easement.      The duration of the Easement [is perpetual/is for [num­ber] years beginning [date]/continues in effect as long as the Dominant Estate Property is used for [insert use or purpose on which the duration of the easement depends] purposes/continues in effect until a public road abutting any part of the Dominant Estate Property is opened up, giving access to the Dominant Estate Property].

B.5.As Is.      Grantees are taking this Easement in an arm’s-length agreement between the Parties. The Consideration was bargained on the basis of an “AS IS, WHERE IS” transaction and reflects the agreement of the Parties that there are no representations or express or implied warranties, other than as is set forth in the Easement. Grantee has not relied on any information other than Grantee’s inspection.

B.6.No Dedication to the Public.      Nothing contained in the Agreement will ever be deemed to create a gift or dedication of all or any portion of the real property comprising the Grantor’s Property or the Grantee’s Property to the general public or for any public use or public purpose.

B.7.Covenants Run with the Land.      The Easement constitutes covenants running with the land and will be binding on and inure to the benefit of Grantors and Grantees. All transferees of any portion of the Properties, by acceptance of a deed conveying title, will be deemed to have accepted the deed subject to all of the terms, provisions, conditions, cove­nants, and agreements contained in the Easement and to have agreed to and assumed all of the terms, provisions, conditions, covenants, and agreements contained in the Easement. [Include if agreed: Any transferor of all or any portion of the Properties will, on the completion of the transfer, be relieved from all further liability under the Easement except liability with respect to matters that may have arisen during its period of ownership of the property so conveyed that remain unsatisfied.]

B.8.No Merger Happens.      The ownership, at any time during the term of this Ease­ment, of the Dominant Estate Property and the Servient Estate Property by the same owner will not create a merger of title or estate or other merger, including any merger of the Domi­nant Estate and the Servient Estate with respect to the easement granted by the Easement, and will therefore not terminate the Easement or other terms or provisions of the Easement.

C.Grantors’ Reserved Rights

C.1.Right to Use of Easement Area.      Grantor reserves for each and every one of the Grantors as owner of the servient estate the right to use and enjoy the Easement Area for all purposes that do not materially interfere with or materially interrupt the use or enjoyment of the Easement by Grantees for the Easement Purpose.

C.2.Right to Convey Easements to Others.      Grantor reserves for each and every one of the Grantors the right to convey to others the right to use all or part of the Easement Area in conjunction with the Grantees, as long as such further conveyance is subject to the terms and conditions of this Easement.

D.Grantors’ Obligations

D.1.Affirmative Covenants

D.2.Negative Covenants

D.2.a.Interfere with Grantees’ Possession.      Grantors agree not to unreasonably inter­fere with Grantees’ possession of the Easement Area as long as Grantees are not in default, except as Grantors are permitted by this Agreement.

D.2.b.No Barriers.      No barriers or other obstruction may be placed permanently or temporarily by the Grantors which would result in obstructing use and enjoyment of the Ease­ment by the owners of the Dominant Estate Property.

E.Grantees’ Granted Rights

E.1.Improvements.      Grantees have the right to construct, install, maintain, replace, and remove the following improvements (collectively, the “Improvements”) in the Easement Area for the Easement Purpose: [list all improvements reasonably necessary or appropriate for the use, operation, maintenance, repair, and enjoyment of the easement area for the easement purpose].

E.2.Fences.      Grantees have the right to remove or relocate any fences within the Easement Area if reasonably necessary to construct, install, maintain, replace, or remove the Improvements or for a road to continue onto other lands or easements owned by a Grantee and adjacent to the Easement Area, subject to replacement by the Grantee of the fences to their original condition on the completion of the work.

E.3.Removal of Encroachments.      Grantees have the right to eliminate any encroachments into the Easement Area that breach any of the provisions of this Easement.

E.4.Right to Use Adjacent Property.      Grantee may use (the “Secondary Ease­ment”) as much of the surface of the property that is adjacent to the Easement Area that is owned by any of the Grantors (“Adjacent Property”) as may be reasonably necessary to install and maintain improvements reasonably suited for the Easement Purpose. [Include if applica­ble: This provision may be limited to a specific area.] However, Grantees must promptly restore the Adjacent Property to its previous physical condition if changed by use of the rights granted by this Secondary Easement and Grantees cannot prevent continued access to the Adjacent Property.

F.Grantees’ Obligations

F.1.Grantees’ Affirmative Covenants

F.1.a.Maintenance.      Grantees agree to maintain the Easement Area in a neat and clean condition. Grantees agree to maintain, repair, and replace the Improvements to the Ease­ment Area. [Include if applicable: The Parties may alternatively agree to share responsibilities or to place the responsibilities on the Grantor.]

F.1.b.Laws, Requirements of Utility Companies, Insurance Issuers.      Grantees agree to obey (i) all laws relating to Grantees’ use, maintenance of the condition, and occupancy of the Easement Area and Grantees’ use of any Adjacent Property; and (ii) any requirements imposed by utility companies serving or insurance companies covering the Easement Area.

F.1.c.Vacate and Removal of Grantee’s Property.      Prior to termination, release, or abandonment of the Easement by Grantees, Grantees are to vacate the Easement Area and remove the Improvements, including [insert] but excluding [insert]. Other than for property to become the Grantors’ Property, any Improvements made by a Grantee are and will remain the property of the Grantee (a “Grantee’s Property”) and shall be removed from Grantors’ Prop­erty prior to the expiration, termination, or abandonment of the Easement by the Grantee. The following property will become the Grantors’ Property on the expiration, termination, or abandonment of the Easement by the Grantee (“Grantors’ Property”): [list such property].

F.1.d.Indemnity

F.1.d.i.Injury Indemnity.      To the extent permitted by law, Grantees agree to and are to indemnify, defend, and hold harmless Grantors and Grantors’ Lienholders, and their respective Agents and employees (“Indemnified Persons”), from any Injury including death to persons (and any resulting or related claim, action, loss, liability, or expense, including reasonable attorney’s fees and other fees and court and other costs) occurring, either before or after the end of the term of this Easement, if caused, in whole or in part, by the acts or omis­sions of a Grantee, their Agents or employees, or those acting on a Grantee’s behalf, including in whole or in part by an Indemnified Person’s negligent acts or omissions except for Excluded Matters (“Indemnified Mat­ters”).

This indemnity (a) is independent of Grantee’s insurance; (b) will not be lim­ited by comparative negligence statutes or damages paid under Workers’ Com­pensation Act or similar employee benefit acts; (c) will survive the term, if any, of this easement or the termination of this Easement; and (d) will apply even if an Injury including death of a person is caused in part by the ordinary negli­gence or strict liability of one or more of the Indemnified Persons, but will not apply to the extent (“Excluded matters”) an Injury including death of per­sons is caused, (a) in whole by an Indemnified Person; or (b) in part, by the gross negligence or willful misconduct of an Indemnified Person.

F.1.d.ii.Hazardous Material Indemnity.      To the extent permitted by law, Grantees (“Indemnifying Persons”) agree to indemnify, defend, and hold harm­less the Grantors, Grantors’ Lienholders, and their respective Agents and employees (“Indemnified Persons”) from any and all claims, damages, fines, judgments, penalties, costs, liabilities, or losses (including, without limitation, any and all sums paid for settlement of claims, attorney’s fees, and consul­tants’ and experts’ fees) from the presence or release of any Hazardous Materi­als, including an Indemnified Person’s strict liability, to the extent caused by the acts or omissions in whole or in part, including negligence, of a Grantee, its Agents, contractors, and employees (“Indemnified Matters”).

F.2.Grantees’ Negative Covenants

F.2.a.Only Permitted Uses.      Grantees agree not to use the Easement Area for any purpose other than the Permitted Use.

F.2.b.No Nuisances.      Grantees agree not to create a nuisance.

F.2.c.No Waste.      Grantees agree not to permit any waste.

F.2.d.No Liens on Grantors’ Property.      Grantees shall not permit any liens to be placed on the Grantors’ Property by, through, or under Grantees.

F.2.e.No Hazardous Materials.      Grantees shall not cause or permit the use, storage, generation, escape, disposal, or release of any Hazardous Materials on the Easement Area in any manner.

G.Joint Obligations of Parties

G.1.Gates.      All gates across the Easement Area must be kept [closed/closed and locked] when not in actual use. [Include if applicable: If the gate is locked, both Parties are to have a key that can unlock the gate.]

G.2.Alterations.      Other than for property to become the Grantors’ Property, any physical additions or improvements to the Easement Area made by a Grantee are and will remain the property of the Grantee (a “Grantee Alteration”) and shall be removed from the Grantor’s Property prior to the expiration, termination, or abandonment of the Easement by the Grantee. [Include if applicable: At Grantors’ election, the following property becomes Grantors’ Property and need not be removed by Grantee: [list such property].]

G.3.Estoppel Certificate.      Each Party on request agrees to execute an estoppel cer­tificate that (a) identifies any amendments to this Easement; (b) describes any rights to extend the term of this Easement, if this Easement is other than for a perpetual period; (c) describes any purchase rights by a Grantee; (d) lists, to its knowledge, defaults by the other Parties; (e) states whether to its knowledge the Easement has been assigned, modified, or amended in any way (and if it has, then stating the terms of the assignment, modification, or amendment); (f) states whether to its knowledge, the Easement, as of that date, is in full force and effect; and (g) provides any other information reasonably requested.

G.4.Utility Easements.      On written request by a Party, the other Parties will execute or join in the execution of easements for sewer, drainage, or utility facilities in, on, above, under, or across the Easement Area.

H.Default; Remedies

H.1.Default.      The occurrence of any one or more of the following events shall con­stitute a material default and breach of this Easement by the nonperforming Party (the “Defaulting Party”): (a) the failure to perform any obligation hereof within the time require­ments cited therein; (b) the failure to make any payment required to be made under this Ease­ment within [number of days] days of the due date; or (c) the failure to observe or perform any of the other covenants, conditions, or obligations of this Easement or to abide by the restric­tions and requirements herein provided, other than as described in (a) above, within [number of days] days after the issuance of a notice by another Party (the “Nondefaulting Party”) spec­ifying the nature of the default claimed.

H.2.Right to Cure.      With respect to any default, any Nondefaulting Party shall have the right, but not the obligation, to cure such default by the payment of money or the perfor­mance of some other action for the account of and at the expense of the Defaulting Party; pro­vided, however, that in the event the default shall constitute an emergency condition involving an immediate and imminent threat of substantial injury or harm to persons or property, the Nondefaulting Party, acting in good faith, shall have the right to cure such default upon such advance notice as is reasonably possible under the circumstances or, if necessary, due to such emergency, without advance notice, so long as notice is given as soon as possible thereafter. Each Party shall be responsible for the nonperformance or default of its occupants and lessees. The Defaulting Party agrees to cooperate reasonably and in good faith with the Nondefaulting Party to facilitate the Nondefaulting Party’s curative actions on the Defaulting Party’s Prop­erty. The Nondefaulting Party shall use its good faith and reasonable efforts to minimize undue disturbance to the users of the Defaulting Party’s Property, including giving the Defaulting Party advance notice of the Nondefaulting Party’s entry on the Defaulting Party’s Property and a copy of plans and specifications for the proposed curative work. The Nonde­faulting Party indemnifies and agrees to protect the Defaulting Party’s Property from mechanic’s liens arising out of the curative actions so taken by the Nondefaulting Party. In the event any Nondefaulting Party shall cure a default, the Defaulting Party shall reimburse the Nondefaulting Party for all costs and expenses incurred in connection with such curative action, plus interest at the Default Rate, within [number of days] days of receipt of demand, together with reasonable documentation supporting the expenditures made.

H.3.Other Remedies.      Each Nondefaulting Party shall have the right to prosecute any proceedings at law or in equity against any Defaulting Party hereto, or any other person violating or attempting to violate or defaulting upon any of the provisions contained in this Easement, and to recover damages for any such violation or default, including attorney’s fees. Such proceeding shall include the right to restrain by injunction any violation or threatened violation by another of any of the terms, covenants, or conditions of this Easement, or to obtain a decree to compel performance of any such terms, covenants, or conditions, it being agreed that the remedy at law for a breach of any such term, covenant, or condition (except those, if any, requiring the payment of a liquidated sum) is not adequate. All of the remedies permitted or available to a Party under this Easement or at law or in equity shall be cumulative and not alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy.

H.4.No Waiver.      No delay or omission of any Party in the exercise of any right accruing upon any default of any other Party shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. No waiver by any Party of any default under this Easement shall be effective or binding on such Party unless made in writing by such Party and no such waiver shall be implied from any omission by a Party to act in respect to such default. No express written waiver of any default shall affect any other default or cover any other period of time other than any default and/or period of time specified in such express waiver. One or more written waivers of any default under any provision of this Easement shall not be deemed to be a waiver of any subsequent default in the performance of the same provision or any other term or provision contained in this Easement.

H.5.No Termination for Breach.      No breach, whether or not material, of the provi­sions of this Easement shall entitle any Party to cancel, rescind, or otherwise terminate this Easement, but such limitation shall not affect, in any manner, any other rights or remedies which any Party may have hereunder by reason of any breach of the provisions of this Ease­ment.

I.General Provisions

I.1.Governing Law and Venue.      This Agreement will be construed under the laws of the state of Texas, without regard to choice-of-law rules of any jurisdiction. Venue is in the county or counties in which the Easement Area is located.

I.2.Binding Effect.      This Agreement binds, benefits, and may be enforced by the Parties, including their heirs, successors, and assigns.

I.3.Amendment.      This Agreement may be amended or terminated only by a written agreement of the owners of all parts of the Easement Area and the Dominant Estate Property.

I.4.Counterparts.      This Agreement may be executed in multiple counterparts. All counterparts taken together constitute this Agreement.

I.5.Further Assurances.      Each Party agrees to execute and deliver any additional reasonable documents and instruments and to perform any additional reasonable acts neces­sary or appropriate to effectuate the terms, provisions, and conditions of this Agreement and all transactions contemplated by this Agreement.

I.6.Survival.      The obligations of the Parties in this Agreement that cannot be or were not performed before termination of this Agreement survive termination of this Agree­ment.

I.7.Entire Agreement.      This Agreement is the entire agreement of the Parties con­cerning the Easement Area and the grant of the Easement by Grantor to Grantee. All under­standings, discussions, and agreements previously made between the Parties, written or oral, are superseded by this Agreement. There are no representations, agreements, warranties, or promises, and none of the Parties are relying on any statements or representations of any of the other Parties or any agent of another Party, that are not in this Agreement. Grantor has not made and does not make any representations about the commercial suit­ability, physical condition, layout, footage, expenses, or operation of the Easement Area or any other matter affecting or relating to the Easement Area and this Agreement, except as specifically set forth in this Agreement. As an inducement to Grantor to enter into this Agreement, Grantee expressly acknowledges and warrants that no such representations have been made and Grantee is not relying on any representations not contained in this Agreement.

I.8.Legal Construction.      If any provision in this Agreement is unenforceable, to the extent the unenforceability does not destroy the basis of the bargain among the Parties, the unenforceability will not affect any other provision hereof, and this Agreement will be con­strued as if the unenforceable provision had never been a part of the Agreement. Whenever context requires, the singular will include the plural and neuter will include the masculine or feminine gender, and vice versa. This Agreement will not be construed more or less favorably between the Parties by reason of authorship or origin of language.

I.9.Notices.      Any notice required or permitted under this Agreement must be in writing. Any notice required by this Agreement will be deemed to be given (whether received or not) the earlier of receipt or three business days after being deposited with the U.S. Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this Agreement. Notice may also be given by regu­lar mail, personal delivery, courier delivery, commercial delivery service, or email, and will be effective when received. Any address for notice may be changed by written notice given as provided herein.

   
[Name of grantor]

   
[Name of grantee]

Exhibit A

Definitions

In addition to terms defined elsewhere in this Agreement, terms used in this Agreement are defined as follows:

“Agent” means agents, employees, and to the extent under the control of the principal, invitees.

“Consideration” means a good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, including the granting and creation of the Easement.

“Hazardous Materials” means (1) any substance the presence of which requires investi­gation or remediation under any applicable federal, state, or local statute, regulation, ordi­nance, order, action, policy, or common law; (2) any substance which is or becomes defined as a “hazardous waste” or “hazardous substance” pollutant or contaminant pursuant to any federal, state, or local statute, regulation, rule, or ordinance now or hereafter in effect, includ­ing the Comprehensive Environmental Response, Compensation and Liability Act (“CER­CLA”) (42 U.S.C. § 9601 et seq.) and/or the Resource Conservation and Recovery Act (“RCRA”) (42 U.S.C. § 6901 et seq.); (3) any hazardous or toxic material, substance, or waste as now or hereafter designated or regulated under any applicable federal, state, or local law, statute, ordinance, rule, regulation, order, or ruling, including, without limitation (a) petro­leum; (b) asbestos; (c) polychlorinated biphenyls; (d) radioactive materials; (e) radon gas; or (f) materials that are of an explosive, flammable, or pyrotechnic nature; (4) any substance which is toxic, reactive, explosive, corrosive, ignitable, flammable, infectious, radioactive, carcinogenic, or otherwise hazardous and is or becomes regulated by any governmental authority, agency, department, commission, board, agency, or instrumentality of the United States, or any political subdivision thereof; or (5) any chemical, material, or substance defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous waste,” “restricted hazardous waste,” or “toxic substances” or words of similar import under any applicable environmental laws.

“Injury” means (1) harm to or impairment or loss of property or its use, (2) harm to or death of a person, or (3) personal injury.

“Laws” means applicable statutes, ordinances, rules, and regulations of all governing public authorities as amended from time to time.

“Lienholder” means the owner of the deed of trust or mortgage encumbering the Prop­erty, or one or more parts thereof.

“Owner” means respectively a Party while it is the owner of all or any part of the Dom­inant Estate Property or the Easement Area, including an undivided interest therein, as the context requires.

“Party’s Property” means respectively the Grantor’s Property or the Grantee’s Prop­erty, as the context requires.

“Parties” means collectively the Grantors and Grantees and respectively a “Party.”

“Properties” means collectively the Dominant Estate Property and the Easement Estate Property.

“Tenant” means the current tenant or lessee of a Party’s Property, or any part thereof, together with such person’s heirs, successors, and assigns, and all future tenants or lessees of the Owner’s Property, or any part thereof, together with such person’s heirs, successors, and assigns.

Exhibit B

Grantor’s Property Description

Exhibit C

Description of Easement Area on Grantor’s Property

Exhibit D

Grantee’s Property Description

Exhibit E

Exceptions to Grantor’s Title Warranty