81R25731 AJA-D
By: Flynn H.B. No. 4618
Substitute the following for H.B. No. 4618:
By: Elkins C.S.H.B. No. 4618
A BILL TO BE ENTITLED
AN ACT
relating to limitations on certain non-express easements.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 10, Property Code, is amended by adding
Subtitle D to read as follows:
SUBTITLE D. EASEMENTS
CHAPTER 191. NON-EXPRESS EASEMENTS
Sec. 191.001. APPLICABILITY OF CHAPTER. This chapter
applies to an easement that:
(1) permits a right-of-way over a servient tenement
for the benefit of a dominant tenement; and
(2) is not established by an express agreement between
the owners of the dominant and servient tenements, including an
easement by estoppel, implication, or prescription or an easement
or way of necessity.
Sec. 191.002. SIZE OF CERTAIN EASEMENTS. In a suit
regarding the scope of an easement permitting the use of a road over
the servient tenement for the benefit of the dominant tenement, the
area subject to the easement may not be extended by the court beyond
the traveled surface of the road at the time the suit is filed, as
determined by a professional survey.
Sec. 191.003. LIMITATION ON FUTURE IMPACT OF EASEMENT. (a)
An easement imposed by a court must be limited by the court in a
manner that prevents a future increase in the impact of the easement
on the servient tenement.
(b) For the purposes of this section, an increase in the
impact of an easement on a servient tenement includes:
(1) an increase in traffic on a road over the servient
tenement caused by the use of the road for the benefit of the
dominant tenement;
(2) an increase in the effect of traffic on a road over
the servient tenement directly or indirectly caused by the use of
the road for the benefit of the dominant tenement, including an
increase in dust, litter, or potential criminal activity;
(3) any change in the nature or boundaries of a road
over the servient tenement that is used for the benefit of the
dominant tenement; and
(4) any other increase in the frequency or length of
time of use of an easement for the benefit of the dominant tenement
or change in the nature of the use of an easement for the benefit of
the dominant tenement.
Sec. 191.004. PLACEMENT AND OPERATION OF GATES, FENCES, AND
OTHER MATERIALS ON OR ALONG EASEMENT. (a) An easement imposed by a
court may not limit the right of the owner or the servient tenement
to place and operate manual or electronic gates or fences, trees or
other vegetation, or stones or other material along the border of
the area subject to the easement.
(b) A person who uses an easement imposed by a court for the
benefit of the dominant tenement shall keep a gate or fence placed
along the border of the area subject to the easement open or closed
as directed by the owner of the servient tenement.
(c) If the owner of the servient tenement installs a manual
gate and an electronic gate along the border of an area subject to
an easement imposed by a court:
(1) the electronic gate may be used for the benefit of
the dominant tenement only with the permission of the owner of the
servient tenement; and
(2) the owner of the dominant tenement, or another
person using the electronic gate for the benefit of the dominant
tenement, if applicable, shall make any payment imposed for the use
of the gate by the owner of the servient tenement.
SECTION 2. The change in law made by this Act applies to an
action concerning an easement filed on or after the effective date
of this Act or pending on the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2009.