Can I build a fence on an easement of necessity to protect my property? ...

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Can I build a fence on an easement of necessity to protect my property?

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DakotaLegal's picture

 

 
These are very troubling kinds of easements. It can be hard enough to establish a legal claim to any recorded easement, over time: let alone stretching that right even further (to build a fence), than just using it for limited access. The reason for having an easement of necessity is also why it can be so hard to figure out if that’s what you have. Unlike most easements, “necessity” does not have to come from any written grants or recorded instruments.
 
All of this puts ‘necessity’ up against the usual requirement to have a real estate ownership or sale in writing, under what’s called the Statute of Frauds. http://law.justia.com/codes/alabama/ 2006/3997/7-2-201.html.
 
So to begin with, and even before we get to the idea of fencing your easement, let’s be a little more sure of exactly what you have.
 
What IS in writing or recorded?
 
This can be the beginning and end of your question. You have what’s called the dominant estate: the easement benefits your property. Sometimes, the servient estate (the one that has the burden of allowing access) has been described in a deed as “burdened,” or limited to allow the easement. If this is the case, you can find out these specifics, either by visiting the County recorder yourself, or by paying for a title search from a title company.
 
Restricted Easements Are Limited Property Rights
 
If there’s been some recognition of your easement in a recording, there may also be some language regarding the use of that easement. For example, there may even be language deciding the rights of the servient estate. A new county road abutting the property might extinguish the easement, and any other claim to that easement you want to make (i.e., fencing). Any recording or writing may specifically restrict any expanded use of the easement, other than for a dirt road (and so as to disallow fencing). There may be language suggesting such a limitation, including common language allowing the servient estate to prevent improvements or to relocate the easement. This language (if it’s there) may explain issues of costs associated with maintaining the easement by necessity, too. But the Alabama Supreme Court has also weighed in, recognizing that a restrictive easement is very limited, and the odds are that (assuming you can or have already proven you have a right to the restrictive easement) the only right this gives you is the narrow right to use the easement: not to expand the right. http://statecasefiles.justia. com/documents/alabama/supreme-court/1050996.pdf?ts=1323884438.
 
Types Of Easements In Alabama
 
Alabama has specifically recognized the right to some easements by necessity. In fact, there are now seven ways that easements can be created in Alabama: (1) By express conveyance, (2) by reservation or exception, (3) by implication, (4) by necessity, (5) prescription, (6) contract, and (7) by some reference to boundaries or maps. If in this case, you cannot find any recordings or written agreements, then you may actually have any one of three types that occur by peculiar facts: implication, necessity, or prescription. It’s possible the fencing you ask for may be better addressed by arguing for some other kind of easement or even adverse possession.
 
The special facts of each case drive the decisions. Here’s a court case (http://caselaw. findlaw.com/al-court-of-civil-appeals/1192574.html ) where the court looked at three key facts, required to prove an easement by necessity. Take a look at that case and these three considerations, to see how the facts in your case match up:
 
(1) that you have no other reasonable means of getting across his land,
(2) that your dominant estate and the servient estate both have title from a common source; and,
(3) that the easement you are asking for is reasonably necessary for the enjoyment of the dominant estate.
 
You have to meet all of the conditions to have an easement by necessity. It isn’t necessary, though, that there be a single person that passed title at the same time: only that the title record can show an original, common source. This may require you to rebuild the title history for a fairly long period of time. These three factors will also decide any other rights to use that easement.

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DakotaLegal's picture

 

 
These are very troubling kinds of easements. It can be hard enough to establish a legal claim to any recorded easement, over time: let alone stretching that right even further (to build a fence), than just using it for limited access. The reason for having an easement of necessity is also why it can be so hard to figure out if that’s what you have. Unlike most easements, “necessity” does not have to come from any written grants or recorded instruments.
 
All of this puts ‘necessity’ up against the usual requirement to have a real estate ownership or sale in writing, under what’s called the Statute of Frauds. http://law.justia.com/codes/alabama/ 2006/3997/7-2-201.html.
 
So to begin with, and even before we get to the idea of fencing your easement, let’s be a little more sure of exactly what you have.
 
What IS in writing or recorded?
 
This can be the beginning and end of your question. You have what’s called the dominant estate: the easement benefits your property. Sometimes, the servient estate (the one that has the burden of allowing access) has been described in a deed as “burdened,” or limited to allow the easement. If this is the case, you can find out these specifics, either by visiting the County recorder yourself, or by paying for a title search from a title company.
 
Restricted Easements Are Limited Property Rights
 
If there’s been some recognition of your easement in a recording, there may also be some language regarding the use of that easement. For example, there may even be language deciding the rights of the servient estate. A new county road abutting the property might extinguish the easement, and any other claim to that easement you want to make (i.e., fencing). Any recording or writing may specifically restrict any expanded use of the easement, other than for a dirt road (and so as to disallow fencing). There may be language suggesting such a limitation, including common language allowing the servient estate to prevent improvements or to relocate the easement. This language (if it’s there) may explain issues of costs associated with maintaining the easement by necessity, too. But the Alabama Supreme Court has also weighed in, recognizing that a restrictive easement is very limited, and the odds are that (assuming you can or have already proven you have a right to the restrictive easement) the only right this gives you is the narrow right to use the easement: not to expand the right. http://statecasefiles.justia. com/documents/alabama/supreme-court/1050996.pdf?ts=1323884438.
 
Types Of Easements In Alabama
 
Alabama has specifically recognized the right to some easements by necessity. In fact, there are now seven ways that easements can be created in Alabama: (1) By express conveyance, (2) by reservation or exception, (3) by implication, (4) by necessity, (5) prescription, (6) contract, and (7) by some reference to boundaries or maps. If in this case, you cannot find any recordings or written agreements, then you may actually have any one of three types that occur by peculiar facts: implication, necessity, or prescription. It’s possible the fencing you ask for may be better addressed by arguing for some other kind of easement or even adverse possession.
 
The special facts of each case drive the decisions. Here’s a court case (http://caselaw. findlaw.com/al-court-of-civil-appeals/1192574.html ) where the court looked at three key facts, required to prove an easement by necessity. Take a look at that case and these three considerations, to see how the facts in your case match up:
 
(1) that you have no other reasonable means of getting across his land,
(2) that your dominant estate and the servient estate both have title from a common source; and,
(3) that the easement you are asking for is reasonably necessary for the enjoyment of the dominant estate.
 
You have to meet all of the conditions to have an easement by necessity. It isn’t necessary, though, that there be a single person that passed title at the same time: only that the title record can show an original, common source. This may require you to rebuild the title history for a fairly long period of time. These three factors will also decide any other rights to use that easement.