Maintaining easements: prevention is easier than cure

Mark Brian

By Mark Brian, ACF, RF

Principal / Senior Vice President / Forester

Bird Forestry

Maintaining Easements

Keeping property easements maintained and updated is vital to ensuring legal access to your property when needed.

The majority of our East Texas and Louisiana forestland was a patchwork of small farms and ranches from the 1800s through World War I. The number of small farms declined after that due to the mechanization of agriculture in conjunction with unfavorable market forces and the boll weevil devastating cotton production. The Great Depression in the 1930s followed by World War II sealed the fate of small-scale farming in the region, and the fields began to reforest themselves as the people migrated to urban areas.

Homesteads, pastures, and even roads disappeared as the trees regained lost ground. Cotton, peas, and okra gave way to the pine, oak, and sweetgum forests that cover the landscape today. These regenerated forests have been important to the forest industry in the South and have been the mainstay of consulting foresters in the United States for the past fifty years.

One such situation arose in our office a few weeks ago when forestland property we were inspecting proved to have access issues. While the land certainly had a legally-deeded access easement, no one had maintained or utilized that access since the 1930s or earlier. This happens where no one remains on the old family farms, and the abandonment of deeded easements and even public roads leaves many properties functionally, if not legally, landlocked. The financial effect on property that becomes landlocked is significant, often reducing overall values by 50-percent or more.

While temporary access for the purpose of harvesting and managing timber was routinely attainable in past years, it has become more difficult as the families and the old neighbors of the farming era have given way to institutional forestland investment firms and recreational ownership. These new land managers and owners are understandably hesitant to grant unfettered access across their properties. Institutional owners are under regulatory financial and legal constraints to protect their client’s interests while a recreational land buyer often cherishes security and exclusive use of their property above all else.

The process of attaining legally-recognized access is often difficult, taking a long time and becoming expensive. Contrary to common belief, there are limited options for landowners in Texas or Louisiana to acquire legal access. In most cases in Texas, the only realistic options are to purchase access from adjoining property owners who are willing to sell an easement or petition the county commissioners court to grant a public road. Any other legal pathway will probably require a court action that will do very little to endear you to your sued neighbor.

There are preventative actions that can be taken, however, to preserve and maintain an existing legal access easement to property. First and foremost is to keep it maintained. Allowing an easement road to grow up in trees and vegetation invites practical and legal problems when it comes time to harvest timber or sell the property. A new neighbor, whether a purchaser or inheritor of the land, might be unpleasantly surprised when they are made aware of plans for opening up a “new road” along a previously unused easement route.

An annual mowing (bush hogging) of the road is the bare minimum level of recommended maintenance. This not only keeps the road open and usable but also demonstrates to the eased property owner that you are serious about your access. Keeping an appropriate line of communication open with this neighbor is important, as is being responsible by not allowing abuse of the easement rights by others. Prior notification to the neighbor before initiating harvesting or other operations involving third-party access is probably not a bad idea as well. Maintenance of the easement should include picking up trash, repairing surface damages, and maintaining stream crossings.

The ability to legally and freely access property for timber production or recreational use is a vital stick in the bundle of rights that goes along with property ownership. The establishment and maintenance of this access will have far-reaching ramifications for the use and ultimate value of your forestlands.

Contact Bird Forestry for assistance with the management of your forestland resources including advice and guidance in maintaining easement access to your property. We have been managing and marketing forest products for our clients for many years, and we understand the importance of your forestland assets. Let us help you reach your forest and land management goals.



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