An easement is a legal concept under which a third party can have what is called a ‘non-possessory interest’ in your property. It gives the third party the legal right to use or access a portion of your property for a specific purpose.
How Does an Easement Work?
The most common example of an easement – and the one you are most likely to be familiar with – is the utility easement. Under this arrangement, a utility company can access a portion of your land for the purpose of installing, maintaining, and repairing utility lines.
Utility easements are restrictive in nature, as they prevent you from doing anything that might interfere with the utility company’s right to access and use the portion of the property which is under their control. So, if you want to build a new structure, do repair and renovation work, or put up a fence, you have to check with the utility company and make sure they do not have a problem with it.
Other examples of easement include:
Easement by Contract
Also referred to as a private easement, this is a type of easement which is established through a written contract between the grantor (the property owner) and the grantee (the third party that needs access to the property in question).
For example, if you own a beachfront property and if it is the most convenient point of entry to the beach, your neighbor might ask your permission to access the path that runs through your property as and when needed.
In such a scenario, you can prepare a legally enforceable contract which clearly explains what your neighbor is allowed to do (accessing the path that runs through your property) and what they are not allowed to do (using the path for other purposes, putting up barriers or any sort of restrictions along the path, and so on) and grant an easement to your neighbor.
Easement by Necessity
If your neighbor’s property is landlocked and does not have direct access to a public road, and if the only way to access the road in question is to cross through your property, they have the legal right to do so – even if you do not agree to it.
This is because the law states that the owner of a property has the right of ingress (to enter their property) and egress (to exit their property) as and when they need to. If there is a piece of land or property which blocks their access to a public road, they have the right to access the property in question without being considered a trespasser.
It should be noted that easements by necessity are legally valid only if there is a genuine necessity. A third party cannot claim to have an easement of necessity on your property if there are other paths available for accessing the road or highway in question.
If the third party does have a genuine necessity, they can access your property – even in the absence of a written contract.
Easement by Prescription
This is a controversial type of easement which allows a third party to gain ownership of your property under certain circumstances.
If a third party uses your property or squats on your property for a period of 20 years – with your presumptive or actual knowledge – they can claim an ownership interest in your property. If, on the other hand, the third party in question pays taxes on your property or has color of title, they can claim an ownership interest in your property after a period of 10 years.
It should be noted that under the concept of prescriptive easement, a person could claim an ownership interest in your property only if they used or accessed your property for 10 years or 20 years (as stated above) continuously and openly. If they did so without your actual or presumptive knowledge, they cannot claim any interest in your land.
It should also be noted that more than one person can claim ownership interest in your property under prescriptive easement – if they use or access your property for 10 to 20 years. So, it’s critical to make sure anyone who uses or accesses your property does so only with your explicit permission.
Our Alabama Real Estate Attorneys Can Help You with Easements
If you are planning to buy a residential or commercial property and want to find out if it has an easement on it or if you are currently involved in an easement related dispute, the real estate attorneys at Davis, Bingham, Hudson, & Buckner, P.C. can help you.
We can find out whether the property you want to buy has an easement on it, what kind of restrictions the easement has, and whether it is worth investing in. We can prepare the agreements needed for you to grant an easement to your neighbors. We can also resolve your easement related disputes through negotiation or litigation.
To learn more about easements and the legal options you have, call our firm today at 334-821-1908 or contact us online and schedule a free consultation with one of our proven and reliable Alabama real estate attorneys.