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EASEMENTS; CREATION; FORMALITIES: Alabama court upholds rule that easement
cannot be created without formality of conveying language in a deed; lease
of hunting rights that does not contain conveyancing language creates a
personal property right in form of an "license coupled with an interest."
David Lee Boykin Family Trust v. Boykin, 661 So.2d 245 (Ala.Civ.App. 1995) 

The consequence of the ruling in this case was that the grantee of the right
could not take advantage of a rule of Alabama property law that limited the
forfeiture of real property interests where substantial consideration had
been paid. The court overruled the trial court's determination that the
breaches of the hunting lease were not so consequential as to permit
forfeiture of valuable hunting rights (they had been subleased for $10,000
per year.)  Although the breaches did no permanent damage to the lessor's
estate, they were in violation of the express language of the lease, and
therefore the lessee forfeited his lifetime hunting lease rights.

Comment 1: This is one of those cases with a "story behind the story."  The
lessor originally had been a timber company, but at time of suit was a trust
created by the lessee apparently in favor of two of lessee's sons.  The
trusts had over $40 million in assets donated by lessee.  The lessee was the
former president of the original lessor.  Although he had subleased the
hunting rights, he clearly was interested in the preservation of them.  How
did he get so crosswise with the children upon whom he had settled $40 million?

Comment 2: It would appear that if the "lease" had simply included some
granting language, the court would have applied a different rule.  It seems
incredible that a modern court would recharacterize a property interest
solely on the ground that certain technical formalities had not been met.
If the formalities are significant, then no right ought to exist at all.
But if the court is prepared to honor the right, then it ought to
acknowledge the substance of the right as a real property interest and treat
it as such.  

Comment 3: The Alabama rule requiring deed formalities for the creation of
an easement is not followed everywhere, but it might be worth checking the
old doctrine in your own state before relying upon the provisions of a
simple declaration of covenants and easements in your next subdivision deal.  
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