Author: Brenton McWilliams
An easement, also sometimes referred to as a right of way (which may refer to a specific type of easement), is defined as an interest in real property owned by another that gives the owner of the interest a specific limited use or enjoyment. A road is a common example. The person who owns the easement has the right to travel over the other person's property. The property owner still owns the property underlying the easement, but the property owner’s use of their own property is secondary to the rights of the easement owner. In other words, the property owner’s use of the property is bound by the easement.
Easements for utilities typically come to mind as common examples: power line easements and pipeline easements for water and sewer lines. However, easements come in a variety of less common forms. In Orange Beach and Gulf Shores, easements for access to the beach are common. Developers use many different easements forms to create the condominiums and modern developments which have been common along the Gulf Coast.
Some states recognize easements which guarantee a piece of property the right to access light and air. Conservation easements limit the use of a land for conservation purposes such as the promotion of outdoor recreation or the establishment of a wildlife habitat. Some of the earliest types of easements involved the right to graze cattle on another person’s property and to take water from a pond or spring.
Easements are typically acquired by deed, but there are at least seven different ways to acquire an easement in Alabama. “These are: (1) by express conveyance, (2) by reservation or exception, (3) by implication, (4) by necessity, (5) by prescription, (6) by contract, and (7) by reference to boundaries or maps.” Helms v. Tullis, 398 So. 2d 253, 255 (1981). I have some disagreements with a couple of these, but I’ll save them for another article.
From the size of Alabama’s list of ways to acquire an easement, you can see it’s not always easy to identify the existence of an easement. Sometimes identifying an easement requires an understanding of the prior use of the property. Even if an easement is created by deed, it may be created by a deed that’s too old to get picked up on a run of the mill title search.
If you need help establishing an easement, defending against the establishment of an easement or you’d like some advice on what can and can’t be done with an existing easement, give me a call at (251) 215-9275 or write me on the contact page to setup an appointment.
This article just scratches the surface of easements. In other articles I’ll delve further on other issues including scope and who has the right to use an easement.