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.
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
- 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
Easement and Boundary
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.