An affirmative easement (also known as a positive easement) is an interest in another person’s land that allows the easement holder or easement owner (the dominant estate) to use the other person’s property (often an adjoining property) for a limited purpose.
For example, a landowner (the dominant estate) may have an affirmative easement that requires the owner of the adjoining property (the servient estate) to permit a limited use of the servient estate, such as discharging water or grass that has been cut onto the servient estate.
The terminology of the dominant estate and the servient estate is best understood by focusing on the use permitted by the easement. The dominant estate is the property with the right to use the servient estate (which is serving the dominant estate in some way).
In Texas, an affirmative easement grants a property owner (the dominant estate) the right to use a portion of another's property (the servient estate) for a specific purpose. This type of easement is typically established through a written agreement and recorded in the county where the properties are located to provide notice of the easement's existence. The easement remains attached to the property even if the ownership of the involved properties changes. Texas law requires that the use of the servient estate by the dominant estate must be clear, explicit, and for a designated purpose, such as the discharge of water or disposal of cut grass. The creation, modification, or termination of an affirmative easement often involves a formal legal process and may require the services of an attorney to ensure compliance with state statutes and to protect the rights of both the dominant and servient estate owners.
