Unwritten Easements Are Tricky and Can Be Devestating

June 12, 2017

Imagine you found your dream spot to build that dream home. You buy the land. You even get a title opinion. You then build that house. Shortly, thereafter, logging trucks begin driving by your new house to the land adjacent to yours. You object but they claim to have an easement. You pull out your title opinion to prove there is not easement on record. Well, the loggers may be rights. Easements in Alabama are not always recorded in the courthouse and therefore aren’t included in that title opinion.

In Alabama, “easements may be acquired: (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. Miller v. Harris, 945 So. 2d 1072 (Ala. Civ. App. 2006)

An express conveyance is a deeded easement. A reservation is one reserved in a prior deed in the history of deeds of the property. These are express easements. Express easements may be referenced in contracts or in maps too.

The logger example above is an example of an implied easement. Its never been written down and a new purchaser may never see anything to raise suspicion of such an easement.

The most common easement is a easement by prescription. Think adverse possession. If you use the route frequently enough for long enough , a person can acquire a right to use it in the future. “To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner.” Bull v. Salsman, 435 So. 2d 27, 29 (Ala. 1983)

Another type of implied easement is an easement by necessity. This easement is created when an owner of land sells a portion of his land but  landlocks his remaineder land Under Alabama law, however, there must be a genuine necessity; mere convenience is not enough. Helms v. Tullis, 398 So. 2d 253 (Ala. 1981) If one can get to his property through his own land, he cannot claim a way of necessity through the land of another. …. That the way sought is more convenient than another way already existing is no reason for obtaining it as a way of necessity.’’ Roberts v. Monroe, 261 Ala. 569, 575, 75 So. 2d 492, 497 (1954)  Under Alabama law, in determining whether to grant an easement by necessity, the issue is not whether the right-of-way sought is, of all possible routes, the nearest and most convenient means to access to the property; instead, the landowner seeking the easement must show that any other alternate-access route would require unreasonable expense disproportionate to the value of the property. Bluffs Owners Ass’n, Inc. v. Adams, 897 So. 2d 375, 378 (Ala. Civ. App. 2004)

Lastly, easement by implication is another type of implied easement. This easement is usually created when a person buys property and everything would lead a reasonable person to believe an easement is present. However, the same principles applicable to an easement by necessity apply to implication.  “Under Alabama law, an easement by implication is only created when a genuine necessity exists; mere convenience is not enough.” Bluffs Owners Ass’n, Inc. v. Adams, 897 So. 2d 375, 379 (Ala. Civ. App. 2004)

Pro tip: (1) Make sure you obtain a general warranty deed when buying property. (2) Inquire of the owners and real estate agents about people crossing the land on any basis, even if irregularly. (3) Have sellers put it in writing.