Understanding Easements in Alabama: A Guide for Property Owners

For many Alabama landowners, the concept of an easement is a confusing mix of landowner rights and the rights of a neighbor or third party. Whether you are looking to buy a new home, developing land, or dealing with a utility company cutting trees on your property, understanding Alabama easement laws is critical to protecting your investment.

As an Alabama real estate litigation attorney, I often help clients navigate these complex property rights. Below is a comprehensive overview of how easements work in our state, how they are created, and how they can be terminated.

What Exactly is an Easement?

In Alabama, an easement is defined as an incorporeal property right. Simply put, it is a non-possessory interest that gives someone the right to use another person’s land for a specific purpose. The landowner keeps the possessory interest in the land, subject to the use of the easement holder.

Crucially, an easement does not grant the right to participate in profits from the land (like mining or timber). It is strictly a right of use. Because easements are considered interests in land, they are subject to the same legal formalities as other real estate transactions, including the Statute of Frauds.

The Two Main Types of Easements

Alabama law generally classifies easements into two categories:

1. Easements Appurtenant This type of easement is “attached” to the land itself. It involves two distinct tracts:

• The Dominant Tenement: The land that benefits from the easement.
• The Servient Tenement: The land that bears the burden. Easements appurtenant “run with the land,” meaning they automatically pass to the next owner when the property is sold, even if the deed doesn’t explicitly mention them.

2. Easements In Gross These are personal rights belonging to an individual or entity, rather than being attached to a specific piece of land. Common examples include commercial easements for public utilities (electric, internet, or telephone lines). These do not have a dominant tenement and are generally transferable.

How Are Easements Created in Alabama?

Easements are not always written neatly in a deed. In Alabama, they can be created through several methods:

• Express Grant: The most common method, created through a written deed or will.
• Reservation: A seller conveys a piece of land but “reserves” an easement for themselves in the deed.
• By Necessity: This arises when a landlocked parcel was once part of a larger tract. The law recognizes that a landowner needs access to a public road.
• By Prescription: This is similar to “squatter’s rights.” If someone uses your land for 20 years or more, and that use is actual, exclusive, open, notorious, hostile, and continuous, they may gain a permanent easement.
• By Implication: If a property is divided, and a specific use was visible and necessary at the time of division, an easement may be implied by law.
• By Estoppel: If a landowner allows another party to spend significant money relying on the promise of an easement, the court may prevent the landowner from denying it later.
• Reference to Maps/Plats: If a developer records a subdivision plat showing streets, this constitutes a dedication of those areas to the public.

Rights and Responsibilities: Who Maintains the Easement?

Disputes often arise over who is responsible for the easement area.

• The Holder (Dominant Estate): Has the right to use the easement for its intended purpose but cannot “overburden” it by expanding that use. Generally, the holder is responsible for maintenance and repair costs.
• The Landowner (Servient Estate): You retain ownership of the land and can use it in any way that doesn’t unreasonably interfere with the easement. You generally have a duty not to obstruct the easement.

Can you put up a gate? Maybe. Alabama courts have held that landowners may install gates if they are considered a “reasonable and necessary burden” under the circumstances, but this is often a fact-specific legal battle.

Buying Property: The Importance of “Notice”

Alabama is a “notice” state. This means a purchaser is generally protected from unrecorded easements if they bought the property without notice. However, notice comes in two forms:

1. Constructive Notice: What is listed in the public records (chain of title).
2. Actual/Nonrecord Notice: What you should have seen during a physical inspection.

Red Flags: When buying land, look for tire tracks, worn paths, or utility markers. These visible signs can serve as notice of a prescriptive easement, even if nothing is written in the deed.

How to Terminate an Easement

Easements are not always forever. Under Alabama easement law, they can be extinguished through:

• Merger: If the same person buys both the dominant and servient land, the easement disappears.
• Abandonment: This requires more than just not using the road. There must be a clear intent to abandon the right.
• Cessation of Necessity: If an easement by necessity (for a landlocked property) is no longer needed because a new road was built, the easement ends.
• Adverse Possession: The landowner can “take back” the easement by blocking it adversely for the statutory period (typically 10-20 years).

Legal Remedies for Disputes

If an easement is blocked or misused, the courts can intervene.

• Injunctions: A Circuit Court can order a party to remove an obstruction (like a fence or shed).
• Damages: You can recover money for the loss of use or diminution in property value.

A Note on Litigation: Alabama applies the Ore Tenus rule. This means if a dispute goes to trial and the judge views the property and hears live testimony, their findings are presumed correct on appeal. This makes having experienced counsel during the initial trial phase absolutely vital.

Conclusion

Whether you are dealing with a “danger tree” cut by a power company or a neighbor claiming a right-of-way across your pasture, easement issues involve complex factual and legal assessments.

If you have questions about an easement on your property or need to draft an agreement to protect your rights, please contact our office today to schedule a consultation.

Disclaimer: This blog post provides general information regarding Alabama law and does not constitute legal advice. The standards for easements are fact-specific. Please consult with an attorney regarding your specific legal situation.