Easements in Alabama

An easement is a non-possessory right in the holder of an easement to use land. In other words, an easement is a "lesser" interest in the real estate that allows the party benefiting from the easement use the property, such as using it for access, installation of utility lines, etc. [1]

There are three major types of easements; appurtenant easements, easements in gross, and prescriptive easements. The transferability of an easement depends on what type it is. Two parties must be present to create an easement: the grantor, or the servient tenant, is the person who owns the property, and the grantee, or dominant tenant, is the person who is allowed access to the property. Easements can either be exclusive, meaning the servient tenant is excluded from the benefits of the easement, or non-exclusive, where the servient tenant can access these benefits.

Easements can also create restrictions on property use, like prohibiting where someone might build a fence or add a structure to their property. In Alabama, easements do not have to be acquired by express conveyance; they can also be implied or acquired through necessity, as opposed to a formal recorded instrument [3]. Therefore, it is essential to research the property's history for any unwritten easements prior to purchasing land [4].

Easements have some benefits, but there are also negative effects on the property value when they are created. The general use of an easement is to award another person the right to use an owner's land, which be an undesirable arrangement for future owners. Sometimes, easements are used to give utility companies the right to erect power lines or bury gas pipelines across a tract of land, which could possibly affect resale values of a property if people are uncomfortable living so close to power lines, or if the power lines are viewed as unsightly [2].

Record easements in the same manner as other land records in the county where the property is located. A lawful easement includes the grantor's full name and marital status, as well as the grantee's full name, marital status, and mailing address. The purpose of the easement must also be explained in the document. Contact the recording department of the appropriate probate office for information about fees and accepted forms of payment.

After an easement is created, it will be included in the legal description of any following deeds, and it will remain in place when the land is transferred. The only way to remove an easement from a property is for both parties to agree to a release and terminate the easement.

This article is provided for informational purposes only and is not a substitute for the advice of an attorney. Contact a lawyer with any questions about easement deeds or other issues related to the transfer of real property.

[1] https://www.law.cornell.edu/wex/easement
[2] https://robertking.net/2009/10/29/alabama-land-easements-land-accessibility/
[3] Miller v. Harris, 945 So. 2d 1072 (Ala. Civ. App. 2006)
[4] https://www.law.cornell.edu/cfr/text/43/2650.4-7

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