easement on real estate

Do Easements Transfer with The Sale of Property In Alabama?

An easement on the property gives the legal right to a non-owner to use or access the property. These are often called “non-possessory” interests in land or property.

It’s pivotal for a party with potential interest in the property to discover all existing easements. In most cases, easements are automatically transferred with the sale deed. You should consult with a skilled real estate attorney to know about easements and how they may affect your rights as a property owner.

Easements are Mostly Transferred Automatically in Alabama

Land burdened or affected by an easement is termed a “servient estate.” The person or land benefited by the easement is termed as the “dominant estate.”

In Alabama, easements don’t necessarily need to be acquired through express conveyance. They may also be acquired through necessity or implied. In short, there doesn’t need to be a formally recorded instrument to transfer easement rights with the property.

This makes it necessary to thoroughly research the property’s history for any unwritten or unrecorded easements before you purchase the land. Typically, the easement appurtenant gets transferred with the dominant property.

This is true even when the transferring document doesn’t mention it. However, the document transferring the dominant estate can always provide that the easement may not pass with the land.

The dominant estate holder is required by law to maintain and upkeep the easement. Any easement that benefits the land is known as “appurtenant” to the land. An easement that benefits an individual on a personal level and not as the owner of another land parcel is known as an easement in gross.

An easement gets included in the legal description of the deed once it is created. They tend to remain in place even when the land is transferred. The only way of removing an easement from your property is to sign a release terminating the easement with the other party.

Taking this into account, it’s crucial to understand that not all types of easements get transferred automatically. This makes it important to consult an experienced real estate attorney to identify the rules applicable to your particular situation. Easements can place restrictions on the use of a property, such as prohibiting the building of a structure or adding a fence to the property.

Transfer of Different Types of Easements in Alabama

It’s crucial to understand that an easement may or may not be tied to the land when the land is transferred by purchase or lease. Whether the easement gets transferred to a new owner or not depends on the type of easement. Easements in gross are naturally treated as a right of personal enjoyment. These usually don’t transfer automatically to the new owner.

With that said, different statutes have been enacted, especially where easements in gross for commercial use are concerned. You should talk to a skilled real estate attorney in Alabama to identify the type of easements on the property and whether there are any steps you can take to remove them.

Easement Appurtenant

Easements typically remain with the property in this, even when the title is transferred. The easement appurtenant runs with the land, which means that the property is bought or sold with the easement in place. In essence, the easement is part of the property.

In case the parcel of property with the original easement gets divided into smaller lots and sold to different owners, the easement will still continue. Stemming from this, this is only till smaller lots benefit from the easement.

Easement in Gross

Easements in gross were traditionally easements that could not be transferred since they were not tied to the piece of land. The property owner could grant an easement to a neighbor, but the easement did not need to continue if the new owner was against it. These are typically referred to as “personal easements” by the court.

Nevertheless, easements in gross can be transferable as well. This is especially true in the case of commercial easements, such as utility easements. These easements provide certain rights to a specific entity or individual to cross over to someone else’s property.

Disputes Regarding Easement and Boundary Lines in Alabama

Typically, easement disputes arise when an entity begins using another owner’s land for a particular purpose, such as ingress or egress without specific permission. Easement disputes can arise when any property improvement encroaches on the adjoining land. It’s crucial to have a survey completed before erecting improvements or purchasing land.

The survey will reveal boundary lines and identify the existence of any encroachments or easements on the property. A qualified attorney will be able to draft a proper legal description after reviewing the survey. This will reflect the information contained within the survey.

Get Legal Help from Reputable Real Estate Attorneys in Alabama

The experienced real estate lawyers at Davis, Bingham, Hudson & Buckner, P.C. can review the documents signed by the previous landowner granting an easement and explain to you how the easement may affect your rights as a new landowner. Our attorneys have a deep understanding of real estate laws in Alabama and have helped a large number of property owners in the state to avoid making costly mistakes.

To set up your free and confidential consultation, call us at (334) 458-8192 or reach us online.


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