Legal Question in Real Estate Law in Texas

We have a driveway easement that runs through our Texas property for the people that live on the land behind our house. A contract of agreement was signed granting them access to the easement on the condition it's their responsibility to maintain the up keep. When the easement was first created this easement was the only access to their land. They now have another entrance to their land from an additional piece of land they purchased. They still use the original driveway we granted to them that runs through my property for commercial business use as well as residential. There are 2 businesses that exist on their property that use the original driveway. They do not maintain the driveway, it has large holes in it and brush is heavily grown over which causes traffic to drive onto our yard on a regular basis. My questions: Can they legally use the driveway for commercial traffic when we are not zoned commercial? Is there any way to void the easement since they have another point of access to the property now? Can we void on contractual grounds as they are not abiding to their obligations? They intend to sell the easement as part of their whole property. Any advice is greatly appreciated.


Asked on 8/16/15, 10:50 am

1 Answer from Attorneys
Joseph A. McDermott, III Attorney at Law

Impossible to give a cogent opinion without reading the easement document. Sorting this out will likely be neither simple nor cheap. Preliminarily, subject to what the easement says:

Presence of another access likely had no effect on the easement holder's rights.

I'm assuming the neighbor tract is zoned commercial. Determining whether use of the easement for commercial traffic violates the zoning ordinance will require analysis of the ordinance.

Remedy for failure to maintain is almost certainly a suit for money damages (measured by your cost to do the maintenance yourselves). Forfeiture of the easement is extremely unlikely.

Best bet might be to negotiate purchasing a release of the easement. You'll need a lawyer rattling his saber to make that happen, I'd guess.

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Answered on 8/16/15, 4:06 pm


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