An easement is a right of use over the land of another. Easements may be implied or express depending on the circumstances surrounding their creation.
Types of Easements in Albama and How they Are Created
In Alabama, an easement may be created in several ways:
- Conveyance - An easement by conveyance is created when one party signs a document granting an easement to another party.
- Prescription - An easement by prescription is established when one party uses the property over which the easement is claimed for a period of twenty years or more with the actual or presumptive knowledge of the owner of the property and such use is adverse to that of the owner and is exclusive, uninterrupted, and under claim of right.
- Adverse Possession - An easement by adverse possession is established by the exclusive, uninterrupted, and adverse use of the property over which the easement is claimed under claim of right with the actual or presumptive knowledge of the owner of that property plus one of the following elements:
- The party claiming the easement must show that a deed or other document purporting to convey title to him was duly recorded in the office of the probate judge in the county where the property is located at least ten years prior to the commencement of the lawsuit to establish the easement by adverse possession;
- If the land is subject to taxation, that he or those through which he claims title have properly listed the property for taxation in the county where it is located annually for at least ten years prior to the commencement of the lawsuit to establish the easement by adverse possession; or
- He derives title by descent or devise from a predecessor in title who was in possession of the land.
If the requirements of adverse use for the statutory period are met, a use will ripen into an easement by adverse possession after 10 years, rather than the twenty years required for a prescriptive easement.
- By Reservation or Exception - An easement by reservation or exception arises when a grantor conveys title to land to another but reserves the right to use the land for a specific purpose.
- By Necessity – An easement by necessity may only arise between a grantor and a grantee where the land being conveyed is landlocked or otherwise inaccessible from a road or highway. In such instances, there is an implication in favor of the grantee of a way of necessity across the lands of the grantor to the road or highway.
- By Contract – An easement by contract is a type of express easement whereby a grantor agrees in writing to convey a right of use over his land to a grantee.
- By Reference to Maps and Boundaries – An easement by reference to boundaries and maps is a type of implied easement and arises when a grantor conveys land that is bounded by a street that is also owned by the grantor. In such instances, there is an implication that an easement passes to the grantee at the time of the conveyance.
Easement and Boundary Line Disputes
Easement disputes typically arise when a party begins using another's land for ingress and egress or for other purposes without the landowner's permission or when landlocked land is sold to a grantee. Easement disputes may also arise when property improvements that encroach on adjoining land are erected.
Help from a Real
Estate Attorney for Easements in Alabama
Before purchasing land or erecting improvements, it's imperative to have a survey completed. The survey will reveal the boundary lines of the subject property and will identify the existence of any easements and encroachments. A qualified real estate attorney will review the survey and draft a proper legal description that reflects the information contained in the survey. Additionally, a real estate attorney can prepare the documents which must be signed by a landowner to grant an easement to a neighboring landowner or to a third party.