Easements and Restrictive Covenants: What Runs with the Land and How It Affects Your Property

By Hank FasthoffJuly 5, 2026

An easement gives someone the right to use your land for a specific purpose without owning it. A restrictive covenant limits what you can do with your own land. Both run with the land, meaning they bind every subsequent owner regardless of whether that owner agreed to them. When you buy commercial property, you inherit every easement and every covenant that was recorded against the title before you acquired it, and you can't ignore them just because you weren't party to the original agreement.

For commercial buyers, easements and covenants are practical constraints that determine where you can build, how the property can be used, who has the right to cross it, and what improvements are permitted. A utility easement running through the middle of a buildable tract may prevent construction in that area. A restrictive covenant limiting use to "office and retail" may prohibit the warehouse or manufacturing operation you planned. Identifying these encumbrances during due diligence, and understanding what they allow and prohibit, is essential before you commit to a purchase.

Express Easements

An express easement is created by a written instrument, typically a deed, an easement agreement, or a plat notation, signed by the landowner granting the easement. Under the Texas statute of frauds (Texas Business and Commerce Code § 26.01), any agreement creating an interest in real property must be in writing and signed by the party granting the right. Express easements are the most common type in commercial transactions, and they're the easiest to identify because they're recorded in the county deed records and listed as exceptions in the title commitment.

Common express easements on commercial property include utility easements (granting electric, gas, water, sewer, and telecommunications providers the right to install and maintain infrastructure), access and ingress/egress easements (granting adjacent landowners or the public the right to cross the property), drainage easements (allowing stormwater flow across the property), and pipeline easements (granting oil, gas, or water pipeline operators the right to install and maintain pipelines).

When you encounter an express easement on a title commitment, compare it against the survey to confirm its location, width, and scope. An easement described in the deed records should correspond to a located easement on the ALTA survey. If the survey doesn't show it, either the easement was never physically established or the survey missed it. Both situations require investigation before closing.

Read the easement instrument in full, not just the title commitment's summary. An easement for "utilities" may or may not permit above-ground installations, construction of substations, or vehicular access for maintenance. An access easement may be limited to a specific route or may permit access across any portion of the property. The scope of the easement, including permitted uses, maintenance obligations, and any restrictions on the servient landowner's use of the burdened area, is governed by the language of the granting instrument.

Implied Easements

Implied easements arise without a written agreement when the circumstances make one necessary. They most commonly appear when a tract of land is divided and the grantor fails to include an easement that both parties obviously intended.

An easement by necessity arises when a parcel is landlocked after being severed from a larger tract. Under Texas law, the party claiming an easement by necessity must prove three elements. First, the dominant and servient estates were once under common ownership. Second, access across the servient estate is a necessity, not a convenience. Third, the necessity existed at the time the two parcels were severed. Hamrick v. Ward, 446 S.W.3d 377 (Tex. 2014). If a public road is later built that provides the landlocked parcel direct access, the necessity may disappear and the easement may terminate.

An easement by prior use arises when a landowner sells part of a property but fails to include a written easement for access routes, utility lines, or other improvements that were already in place and serving both parcels. The party claiming the easement must prove that the dominant and servient estates were once under common ownership, the use existed at the time of severance, the use was open, apparent, continuous, and permanent enough to show intent, and the easement is reasonably necessary to the enjoyment of the dominant tract.

Both types of implied easement require the claimant to go to court, prove each element, obtain a court order granting the easement, and record the order in the county deed records. Express easements are always preferable because they avoid the expense, uncertainty, and delay of litigation.

Prescriptive Easements

A prescriptive easement arises when someone uses your land openly, continuously, and without your permission for at least 10 years. Texas courts apply the 10-year adverse possession limitations period under Texas Civil Practice and Remedies Code § 16.026 by analogy to prescriptive easement claims. Unlike adverse possession, which transfers ownership, a prescriptive easement grants only the right to use the land for the specific purpose established during the prescriptive period.

To establish a prescriptive easement, the claimant must prove the use was open and notorious, hostile and adverse (without the landowner's permission), continuous and uninterrupted for at least 10 years, and exclusive (the landowner didn't also use the same area for the same purpose). If the landowner granted permission for the use, even informally, the use is permissive as a matter of law, and it can't ripen into a prescriptive right. Any interruption of the adverse use resets the 10-year period.

Texas courts view prescriptive easements narrowly and rarely grant them. For commercial property owners, the defensive takeaway is to monitor unauthorized uses of your property and either grant revocable written permission (which defeats the hostile-use element) or take affirmative steps to stop the unauthorized use before the 10-year period runs.

Easements by Estoppel

An easement by estoppel may arise when a landowner represents, either by words or conduct, that an easement exists, another party relies on that representation, and the relying party would suffer harm if the easement were denied. Easements by estoppel are equitable in nature and require a court determination. They arise most often when a landowner informally permits a neighbor to use a road or access point, the neighbor improves the access at significant expense, and the landowner then attempts to revoke the permission.

Restrictive Covenants

Restrictive covenants are private agreements that limit how property can be used or developed. They're typically created by developers when a commercial subdivision, office park, or retail center is platted, and they bind every subsequent owner of every lot within the development. Covenants are recorded in the county deed records and appear as exceptions in the title commitment.

Common restrictive covenants on commercial property include use restrictions (limiting the property to specific uses such as office, retail, restaurant, or prohibiting uses such as manufacturing, adult entertainment, or hazardous materials storage), building requirements (minimum or maximum building height, setback requirements, floor area ratios, building materials), architectural controls (requiring approval of building plans and exterior designs by an architectural review committee), signage restrictions (limiting the size, height, placement, and illumination of commercial signs), maintenance obligations (requiring owners to maintain landscaping, parking areas, and building exteriors to a stated standard), and parking ratios (requiring a minimum number of parking spaces per square foot of building area).

Restrictive covenants run with the land and are enforceable against subsequent owners as long as they satisfy the requirements for enforceability. Under Texas law, a covenant runs with the land if it was created by the original parties for the purpose of benefiting the land, it "touches and concerns" the land (meaning it relates to the use, enjoyment, or improvement of the land rather than to a personal obligation), and subsequent purchasers had notice of the covenant (which is satisfied by recording in the deed records).

Enforcement

Property owners' associations (POAs) enforce covenants in most commercial developments that have them. A POA can assess fines, demand compliance, and file suit to enjoin violations. In developments without a POA, any property owner within the subdivision who benefits from the covenant can enforce it against a violating owner through a lawsuit seeking injunctive relief (a court order compelling compliance) or damages.

Not every technical violation justifies enforcement. Texas courts apply equitable principles to covenant enforcement and may decline to enforce a covenant if the complaining party has engaged in similar violations (the "unclean hands" doctrine), if the character of the neighborhood has changed so fundamentally that enforcement would serve no purpose, or if the complaining party waited unreasonably long to object (laches). These defenses are fact-intensive, and courts evaluate them case by case.

Modification and Termination

Restrictive covenants can be modified or terminated through several mechanisms. All owners subject to the covenant can agree in writing to modify or release it. If the covenant includes a sunset provision (a specified expiration date), it terminates automatically when that date arrives. Under Texas Property Code Chapter 209 (for residential POAs) and Chapter 202 (applicable to all property owners' associations), covenants can be amended through the process specified in the declaration or by agreement of the owners of a specified percentage of the lots, depending on the declaration's terms.

A covenant can also be terminated by court order if the conditions that gave rise to the covenant have changed so fundamentally that enforcing it would be inequitable. This is sometimes called the "changed conditions" doctrine. A use restriction limiting property to "single-family residential" in an area that has been rezoned and developed as commercial may be unenforceable if enforcement would produce no benefit to the parties it was designed to protect.

Easements can be terminated by written release from the easement holder, by merger (when the same person acquires both the dominant and servient estates), by abandonment (the easement holder demonstrates intent to permanently relinquish the easement through affirmative conduct, not mere non-use), by expiration of a stated term, by disappearance of the necessity (for easements by necessity), or by adverse possession (the servient landowner obstructs the easement openly and continuously for the prescriptive period). In Jordan v. Rash (Tex. 1961), the Texas Supreme Court held that erecting a permanent structure across an access easement for more than a decade effectively destroyed the easement.

Practical Recommendations for Commercial Buyers

Review every Schedule B exception in the title commitment, and read every recorded easement and covenant instrument in full. Title commitment summaries are abbreviated and may not capture the full scope of an easement's permitted uses or a covenant's restrictions.

Compare every easement on the title commitment against the ALTA survey. Physically locating easements on the ground reveals whether they affect your buildable area, parking, access, or planned improvements.

Evaluate whether restrictive covenants permit your intended use before you commit to the purchase. A covenant prohibiting "manufacturing" may or may not prohibit the light assembly operation you plan to run, depending on how the covenant defines the term.

If you're acquiring property subject to a POA, review the declaration, bylaws, and assessment history. Understand your assessment obligations, architectural approval requirements, and any pending enforcement actions.

If an easement or covenant creates a problem for your intended use, negotiate with the easement holder or the covenant beneficiaries for a modification or release before closing. It's easier to negotiate an easement relocation or a covenant amendment while you still have the option to walk away from the purchase than after you've closed and your only option is litigation.