Easement laws in Alabama give one party the legal right to use part of another person’s land for a defined purpose, and those rights can come from a signed document, from the circumstances of how a property was divided, or from decades of unpermitted use. Once an easement is valid, it binds both the current owner of the burdened land and future buyers, and ending it takes more than simply walking away.
How an Easement Gets Created
Alabama recognizes three routes to a valid easement. Which route applies determines what you need to prove if the right is ever challenged.
Express Easements (Written Grants)
This is the cleanest path. A landowner signs a document — a deed, a standalone easement agreement, or a contract — granting someone the right to use a portion of the property. Alabama’s Statute of Frauds requires any interest in land to be in writing and signed by the grantor.1Alabama Legislature. Alabama Code 8-9-2 – Certain Agreements Void Unless in Writing A verbal promise to let a neighbor use your driveway won’t survive in court.
The document should spell out the scope of use, any duration, and the restrictions. A driveway easement might cover foot and vehicle traffic while excluding commercial deliveries, for example. To be recorded, the conveyance must be signed by the grantor and attested by at least one witness.2Alabama Legislature. Alabama Code 35-4-20 – Conveyance Required to Be in Writing; Signature; Attestation by Witnesses Recorded easements bind future owners of both properties, and disputes usually turn on interpreting the language rather than whether the right exists.
Implied Easements
Nothing is written down, but the circumstances justify recognizing a right. Alabama courts look at two situations.
An easement by necessity arises when a landowner sells off a parcel that ends up landlocked. Rather than leave the buyer stranded, courts infer an easement across the seller’s remaining land. The Alabama Supreme Court applied this in Helms v. Tullis, 398 So. 2d 253 (Ala. 1981).3Justia. Helms v. Tullis, 398 So. 2d 253 Genuine necessity is the standard. Convenience isn’t enough.
An easement by prior use applies where a property was used a certain way before being divided, and one of the resulting lots depends on that use. Picture a driveway that served one property for years, then the land was split. If the new lot needs the driveway for access, the use was visible when the split happened, and the driveway is reasonably necessary for that lot, a court is likely to recognize continued use.
Prescriptive Easements (20 Years of Adverse Use)
A prescriptive easement is earned by long, unauthorized use. It doesn’t give ownership, only the right to keep doing what you’ve been doing.
The claimant must prove at least 20 years of use.4Alabama Legislature. Alabama Code 6-5-200 – Real Actions Time alone isn’t enough. Alabama requires the use to be adverse to the owner, under a claim of right, exclusive, continuous, uninterrupted, and known to the owner or so open the owner should have known.5Justia. Riley v. Boles – Supreme Court of Alabama Decisions Alabama courts also presume that use of another’s land is permissive, so the claimant has to affirmatively prove the use was hostile. That’s a heavier burden than most people expect.
The classic example is a path used for decades by neighbors to reach a lake without any grant of permission. The Alabama Supreme Court addressed this kind of claim in Bull v. Salsman, 435 So. 2d 27 (Ala. 1983), stressing that the claimant needs clear and convincing evidence on every element.6Justia. Bull v. Salsman, 435 So. 2d 27 If the landowner interrupts the use during the 20-year window — a fence, no-trespassing signs, or written permission — the clock resets.
Recording and Why It Matters
An easement can exist in Alabama without being recorded, but skipping this step invites disputes. Conveyances of property, including easements, are supposed to be filed in the office of the probate judge for the county where the land sits.7Alabama Legislature. Alabama Code 35-4-50 – Conveyances Required to Be Recorded in Office of Probate Judge An unrecorded easement is vulnerable: a later buyer of the burdened land who purchases without knowing about the easement may not be bound by it.
Once the easement is recorded, Alabama treats the filing as notice of everything in the document. Prospective buyers are charged with knowledge of whatever a title search would turn up, whether they actually search or not.8Alabama Legislature. Alabama Code 35-4-63 – Recording Effective as Notice of Contents of Conveyance
Even without recording, an easement can survive a sale if the buyer had actual knowledge. A visible, in-use driveway easement is hard for a new owner to deny, and the Alabama Supreme Court applied that reasoning in Baker v. Kenney, 654 So. 2d 548 (Ala. 1995). Relying on actual notice is still risky. Recording is the reliable protection.
Who Maintains an Easement
The party benefiting from an easement bears the primary duty to maintain it. If you hold an easement to use a driveway across your neighbor’s property, keeping that driveway usable is generally your responsibility. The burdened landowner has no obligation to make improvements for your benefit.
What the burdened owner cannot do is interfere or let the land deteriorate in ways that block access. Dumping debris on a right-of-way or allowing drainage problems that wash out an easement road both violate the duty not to obstruct. Where the easement document addresses maintenance — paving, drainage, snow removal — those terms control. Without written terms, the default is that the holder maintains and the burdened owner refrains from interference.
Shared easements complicate this quickly. Three homeowners using the same easement road ought to split costs proportionally, but if the agreement doesn’t say so, enforcement becomes a courtroom question. Getting cost-sharing terms into the written easement at the outset is far cheaper than litigating them later.
Enforcing an Easement Against Interference
When someone blocks a lawful easement, Alabama courts will intervene. The usual remedy is an injunction ordering the burdened landowner to stop interfering. Once an easement is legally established, the burdened owner cannot unreasonably interfere with its use, as the Alabama Supreme Court held in Black v. Brooks, 449 So. 2d 786 (Ala. 1984).
Not every inconvenience justifies a lawsuit. Courts separate substantial interference from minor annoyance. A locked gate across a right-of-way may be acceptable if the landowner provides a key and access stays practical. If the gate effectively prevents passage or makes access unreasonably difficult, a court is more likely to order removal. A gate that works for passenger cars but blocks the farm equipment that actually uses the easement can still count as interference.
Damages are available when interference causes real financial harm. In Cowart v. Aaron, 248 Ala. 491 (1947), the Alabama Supreme Court upheld damages for a plaintiff who lost income because an easement was improperly blocked. Recoverable costs can include expenses for alternate access and documented business losses.
Encroachments cut the other way. If you build a shed, fence, or other structure on someone else’s easement, the holder can seek a court order requiring removal. Utility companies with transmission easements often have contractual rights to remove encroachments at the property owner’s expense without going to court at all.9Alabama Power. Rights of Way Check your deed and any recorded easements before building. Demolition costs dwarf the cost of a title search.
Utility and Broadband Easements on Your Land
Utility easements are the type most Alabama property owners run into, and they’re often already in place when you buy a home. They let electric, water, sewer, gas, and telecommunications providers install, maintain, and repair infrastructure on private land.
Their scope is usually broader than owners assume. Alabama Power, under its transmission line easements, has the right to manage or remove trees and vegetation both inside and outside the easement boundary when they threaten line reliability, and it can require removal of encroachments like sheds, fences, or landscaping at the owner’s expense.9Alabama Power. Rights of Way
Alabama has also expanded utility easement rights to cover broadband. Under the Broadband Using Electric Easements Accessibility Act, electric providers can install broadband systems within existing electric easements. If the original easement didn’t contemplate broadband, the landowner’s exclusive remedy is a civil action for damages measured by the change in fair market value. Courts will not order the broadband infrastructure removed; the easement is permanently expanded to include it.10Alabama Legislature. Alabama Code 37-16-7 – Civil Action by Owner of Interest in Real Property Subject to Easement That’s worth knowing before you buy property with electric easements running through it.
Conservation Easements
Alabama adopted the Uniform Conservation Easement Act at Ala. Code §§ 35-18-1 through 35-18-6. It lets a landowner permanently restrict development on their land for conservation purposes. Unlike access easements, a conservation easement limits what the owner can do with the land rather than granting anyone else the right to cross it.
The instrument must explicitly identify itself as a conservation easement.11Alabama Legislature. Alabama Code 35-18-2 – Easement Conveyed, Recorded, Assigned, Released, Modified, Terminated It doesn’t take effect until the holder, typically a land trust or government agency, formally accepts it and records the acceptance. One trap catches landowners off guard: if no term is stated, the easement doesn’t last forever. Alabama defaults to the lesser of 30 years, the life of the grantor, or until the grantor sells the property. Owners wanting a truly permanent restriction must say so in the document. Existing interests such as mortgages and mineral rights are not affected unless those holders consent and the consent is recorded.
Alabama prohibits the creation of conservation easements by eminent domain at any level of government. They must be voluntary. On the tax side, a qualifying conservation contribution can generate a federal income tax deduction under IRC § 170(h) when the easement is granted in perpetuity to a qualified organization for a recognized conservation purpose such as habitat protection, scenic preservation, or outdoor recreation.12Office of the Law Revision Counsel. 26 USC 170 – Charitable, Etc., Contributions and Gifts Alabama also offers a state income tax credit for conservation easements, though the details should be confirmed with a tax professional since state credits and caps change.
How an Easement Ends
Easements don’t necessarily last forever. Alabama recognizes several ways they can end, though some are harder to prove than others.
- Merger. When the same person or entity acquires both the benefited and burdened properties, the easement disappears. You can’t have an easement over your own land. If the properties later separate again, the easement doesn’t automatically revive.
- Express release. The holder formally gives up the right in a written, recorded document. This is the cleanest method and the least likely to be challenged.
- Abandonment. Nonuse alone is not enough. Alabama requires evidence of an intentional act showing the holder voluntarily gave up the right, as the Alabama Supreme Court made clear in Roberts v. Monroe, 261 Ala. 569 (1954). Tearing out a driveway you had an easement to use, or building a permanent alternative route, might qualify. Not driving on it for a few years will not.
- Prescription. The mirror image of prescriptive creation. If the burdened owner blocks use for 20 years in a way that meets the same adverse, continuous, and open requirements, the easement can be extinguished.4Alabama Legislature. Alabama Code 6-5-200 – Real Actions
- Changed circumstances. Courts may terminate an easement when its purpose no longer exists. An easement granted to access a building that has since been demolished and the land repurposed may have outlived its reason to exist.
- Expiration of a stated term. If the document sets a time limit, the easement ends when it runs out. Conservation easements without a stated term default to the lesser of 30 years, the grantor’s lifetime, or the grantor’s sale of the property.11Alabama Legislature. Alabama Code 35-18-2 – Easement Conveyed, Recorded, Assigned, Released, Modified, Terminated
Whichever route applies, put the termination in writing and record it with the probate office. Leaving an extinguished easement on the books creates title problems that complicate later sales of either property.