Easements and Restrictive Covenants Affecting Texas Commercial Property

By Hank FasthoffJuly 5, 2026

An easement authorizes someone to use another person's land for a particular purpose. A restrictive covenant limits how land may be used or developed. Either can reduce buildable area, restrict access, prevent an intended use, or impose costs that the purchase price never reflects.

Whether either interest binds a subsequent owner depends on the nature of the right, its governing terms, and notice. An easement may benefit another tract or a particular person, and an unrecorded interest may fail against a purchaser who paid value without notice. A restrictive covenant binds a subsequent purchaser only when the governing law, instrument, and notice support enforcement against that purchaser. Commercial due diligence therefore depends on the recorded documents, current survey, visible conditions, and history of the property.

Express Easements Begin with the Grant

Texas Property Code Section 5.021 requires a qualifying conveyance of an interest in land to be written, signed, and delivered. A properly recorded instrument provides notice to all persons under Section 13.002. Under Section 13.001, an unrecorded conveyance of a real property interest is void against a subsequent purchaser who paid value without notice, though it binds the parties and purchasers with notice.

An appurtenant easement benefits a dominant tract and generally passes with that land. An easement in gross benefits a person or entity instead of another parcel. The instrument and applicable law determine who may use the easement, whether the holder may assign it, and whether the right binds a successor to the burdened property.

The granting language defines the permitted purpose and scope. In Boerschig v. Rio Grande Electric Cooperative, Inc. (Tex. 2026), the Supreme Court of Texas repeated the rule that an easement permits only the particular purposes within its scope. The court recognized an easement by estoppel for the existing electric line across the ranch. It held that an upgrade serving a new customer and a new substation exceeded the right because the purchaser lacked notice of the unrecorded writing and no evidence showed the expansion was reasonably necessary for the existing use.

Your review should address the permitted purpose, location, width, access, construction rights, maintenance, relocation, expansion, indemnity, insurance, restoration, and responsibility for damage. A grant for utilities may leave questions about surface equipment, vehicle access, vegetation removal, or added lines. An access easement may serve one tract, a defined group of users, or a broader development, depending on its text.

A title commitment and survey provide different information. The title commitment identifies recorded exceptions, while the survey may plot an easement and show improvements within or across it. An easement absent from the survey may contain a description that can't be plotted, cover a broad area, lack physical improvements, or require additional survey work. That mismatch requires review of the recorded instrument, an explanation from the surveyor, and physical inspection before closing.

Implied Easements Depend on Severance and Use

Texas recognizes implied easements in limited circumstances even without an adequate written grant. A roadway claim for a previously unified, landlocked parcel proceeds under the doctrine of easement by necessity. In Staley Family Partnership, Ltd. v. Stiles, 483 S.W.3d 545 (Tex. 2016), the court required proof of prior common ownership, present necessity instead of convenience, and necessity when the dominant and servient estates were severed. The claimant lost because the evidence failed to establish that the proposed easement would have provided access to a public road at the time of severance.

An easement implied from prior use addresses a different circumstance. Before severance, the common owner used one part of the property to benefit another, and the use was apparent, continuous, and reasonably necessary when the owner divided the tract. Hamrick v. Ward, 446 S.W.3d 377 (Tex. 2014), distinguished that doctrine from the stricter necessity rule for roadway access to landlocked property.

These rights arise from circumstances recognized by law, though litigation may be required to establish their existence, location, and scope when landowners disagree. A buyer should investigate possible implied rights even when the title commitment is silent. Historic access roads, utility lines, drainage patterns, prior ownership, and severance documents may support or defeat a claim.

Prescription Requires Adverse Use for 10 Years

A prescriptive easement may arise from adverse, open and notorious, continuous, and exclusive use for at least 10 years. Permission defeats adversity unless the user repudiates that permission and gives the landowner notice of a hostile claim. Shared use with the landowner also may fail the exclusivity requirement when no independent hostile act identifies the claimant's adverse right.

In Albert v. Fort Worth & Western Railroad Co., 690 S.W.3d 92 (Tex. 2024), the Supreme Court held that testimony about decades of use at a railroad crossing could support findings that the use was adverse, open and notorious, continuous, and exclusive for the required period. The same evidence failed to establish easements by necessity or estoppel. The decision shows why prescriptive claims depend heavily on evidence of the property's historical use.

A property owner who discovers an unauthorized road, parking area, utility line, or drainage use should determine when the use began and whether a predecessor granted permission. Written permission can define a revocable use and preserve evidence of its permissive character. If the owner intends to stop the use, the response should comply with safety requirements, existing agreements, and any rights the user may already claim.

Representation and Reliance Support Estoppel

An easement by estoppel requires a representation that an easement would be conveyed, belief in that representation, and detrimental reliance. Silence by itself may be insufficient, and a court can recognize the claimed right only if its purpose and scope are sufficiently defined.

The 2026 Boerschig decision confirmed that a defective or unrecorded writing may serve as evidence of the required representation. Rio Grande relied on the document by constructing and maintaining the original line for decades. The buyer saw the facilities and received a survey showing their location. His notice covered the existing use, and the cooperative relied on the writing for the original installation, so estoppel didn't authorize the subsequent expansion.

A buyer should examine visible uses as closely as recorded title. Roads, poles, pipes, ditches, parking patterns, and shared facilities may provide notice of rights omitted from the title commitment. Your inspection and survey review should identify who uses each feature, under what authority, and for how long.

Restrictive Covenants Depend on Text and Notice

Restrictive covenants limit permissible uses of land. Commercial declarations may regulate use, building area, setbacks, signage, parking, architecture, maintenance, assessments, access, and approval procedures. Recording provides notice, but enforcement against a particular parcel also depends on the restriction's text, the benefited parties, the duration, and governing law.

Texas courts enforce the words the parties recorded without adding restrictions to complete a perceived development plan. In Tarr v. Timberwood Park Owners Association, Inc., 556 S.W.3d 274 (Tex. 2018), the court held that residential use restrictions didn't prohibit short term rentals because the covenants said nothing about leasing, rental duration, or owner occupancy. In EIS Development II, LLC v. Buena Vista Area Association (Tex. 2025), the court held that a restriction allowing no more than two residences on any five acre tract didn't prohibit one residence on each newly platted tract of less than five acres.

A court sometimes implies a restriction across a subdivision from a common development plan, a doctrine called an implied reciprocal negative easement. In River Plantation Community Improvement Association v. River Plantation Properties, LLC, 698 S.W.3d 226 (Tex. 2024), the court refused to impose a perpetual golf course restriction based on neighboring covenants, plats, marketing materials, and the property's historic use. The express restrictions on nearby residential lots differed materially from the golf course restriction the association sought to impose.

Chapter 202 of the Texas Property Code governs restrictive covenants generally. Courts must construe them liberally to effect their purposes and intent, but that rule doesn't permit a court to add a restriction missing from the instrument. Chapter 209, titled the Texas Residential Property Owners Protection Act, applies to residential property owners associations rather than commercial associations generally.

Enforcement Authority Depends on the Documents and Law

A commercial association's authority to assess charges, approve plans, impose fines, or sue for an injunction depends on the declaration, governing documents, and applicable law. The recorded declaration should identify who may enforce each covenant, what notice and hearing procedures apply, whether an opportunity to cure exists, and which remedies are available. A nearby landowner needs authority under the declaration or applicable law to enforce a covenant.

Texas Property Code Section 202.004 presumes that a property owners association or other representative acts reasonably when exercising discretionary authority concerning a restrictive covenant unless a court finds by a preponderance of the evidence that the exercise was arbitrary, capricious, or discriminatory. The governing documents must grant the authority because the statutory presumption addresses only reasonableness. You should review assessment history, pending violations, architectural decisions, budgets, amendment records, and any estoppel certificate available from the association.

Changed Conditions Require More Than Rezoning

A court may decline equitable enforcement when conditions have changed so radically that the restriction can no longer provide a substantial part of its intended benefit. A successful defense requires more than economic inconvenience, a more profitable proposed use, or a zoning amendment.

In EIS Development, the Supreme Court held that the factfinder must consider all changes since the restriction was created, including changes that preceded the current owner's purchase. The court also repeated that unsuitability for the restricted use is insufficient. A court considers the restriction's purpose, continuing benefit, effect, and the competing harm to owners who purchased in reliance on it.

Modification may offer a more predictable solution than litigation. Your purchase contract should provide enough time to obtain any required release, amendment, consent, or easement relocation before your obligation to close becomes unconditional. Your contract should identify every person whose signature or vote is required and state what happens if approval never arrives.

Due Diligence Compares the Documents with the Property

You should read every easement and restrictive covenant listed in Schedule B of the title commitment. The short exception label rarely states the full purpose, affected area, duration, amendment procedure, enforcement rights, or termination provisions.

Your survey review should compare plotted easements and encroachments with the site plan, parking layout, access points, utilities, drainage, and proposed improvements. You should then inspect the property to determine whether current roads, poles, pipes, ditches, fences, signs, parking, and shared facilities match the title and survey record.

You should also confirm that each restriction permits the intended use and development plan. Defined terms can control whether light assembly qualifies as manufacturing, whether a restaurant may include a drive through, or whether signage and parking requirements fit the tenant mix.

If a right conflicts with the proposed project, the purchase agreement should preserve an exit or adjustment while you seek a release, relocation, amendment, endorsement, or revised site plan. Once closing occurs, the property price is fixed and the remaining dispute may concern an injunction rather than a design preference.