What Everyone Should Know About Homeowner Property Easements

Homeowner property easements! What is an easement: Black’s Law Dictionary defines an easement as “a right of use over the property of another.  Traditionally the permitted kinds of uses for limited, the most important being rights of way and rights concerning flowing waters.  The easement is normally for the benefit of adjoining lands, no matter who the owner was (an easement appurtenant), rather than for the benefit of the specific individual (easement ingress).  The land having the right of use and appurtenant is known as the dominant tenement and the land which is subject to the easement is known as the serviant tenement.”  Alabama Case Law defines an easement as “a liberty, privilege or interest in land distinct from ownership of the soil”.  Pelzer Homes, Inc. V. Alabama Power Co., 475 So.2d 558, 560 (Al. 1985).  Therefore, an easement grants to a third party a non-possessory interest in the property involving the right to use property for a specific purpose.  It is important to realize that when one purchases property, the property and one’s ownership rights will be subject to any easements on the property, even, possibly, if the easement has not been recorded.¹

Since an easement is an interest in land, it must comply with the Statute of Fraud and be in writing.  Alabama recognizes that an easement may be obtained in following ways: (1) by an express conveyance; (2) by an express reservation or exception from transfer; (3) by implication – an easement by implication requires that two parcels of land formerly have a common owner (i.e. someone who sells off a piece of his property to another) and that the use across one of the parcels of land was open, visible, continuous and reasonably necessary such that a grantee can reasonably expect to continue using the access across such parcel of land; (4) by necessity – an easement by necessity arises because public policy deems that land should be usable.  This usually involves being able to reach a public road across another’s property; (5) by prescription/adverse possession – in order to establish an easement by prescription, one must use the premises over which a right is claimed for a period of twenty years, the use must be adverse to the owner, under a claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner; or (6) by reference to boundaries or map and Hereford v.  Gingo – Morgan Park 551 So.2d 918, 921 (Al.1989).¹

Property Easement Form

Home Estate

Timothy D. Davis, John J. Kubiszyn, and Bradley Siegal, Keys to Success in a Real Estate Transaction in Alabama (Eau Claire, WI: National Business Institute, 09Q0703, 1999) pp. 168-169.