⚠ Wire Fraud Warning
We will never send wire instructions by email, and we will never email you a change to instructions you already have. Any such message is fraudulent, even if it appears to come from us.
Before transferring any funds, call 256-434-1678 using a number you already have — not a number from an email — and confirm verbally with someone you know.
This is the most common way money is lost in a real estate transaction, and one phone call prevents it.
The right of disposition is your power to decide what happens to your property — to sell it, give it away, mortgage it, lease it, or leave it to someone in your will.
It is rarely absolute. In Alabama it is limited by how the deed reads, by liens and mortgages, by recorded restrictions, by co-ownership, and — in some circumstances — by the rights of a spouse.
The bundle of rights
Ownership of land is usually described as a bundle of separate rights, each of which can be sold, leased or given away independently.
| Right | What it means |
|---|---|
| Possession | The right to occupy and hold the property |
| Control | The right to use it as you choose, within the law |
| Exclusion | The right to keep others off |
| Enjoyment | The right to use it without interference |
| Disposition | The right to transfer it — sell, gift, mortgage, lease or devise |
You can sell the minerals and keep the surface, grant an easement across one corner, or lease the whole thing for fifty years and keep the reversion. Each of those is a slice of the bundle.
What limits disposition in Alabama
- Liens and mortgages. You can sell mortgaged property, but the lien follows the land unless it is paid off or released at closing. That is what a payoff at closing is for.
- Recorded restrictions and covenants. Subdivision covenants, HOA restrictions and deed conditions run with the land and bind whoever takes it next.
- Co-ownership. One tenant in common can sell their undivided fractional interest, but cannot convey the whole. This is the mechanic behind Alabama’s heir property problem.
- Survivorship language. A properly worded survivorship deed limits what one owner can do alone, and passes the property outside probate on death.
- Life estates. A life tenant can convey only their life interest. The remainderman holds the rest.
- Fiduciary limits. A personal representative needs prior court approval under § 43-2-844 to sell, mortgage or lease estate property. A trustee is bound by the trust instrument.
- Marital rights. Alabama recognises dower in the cases provided by law — probate courts have jurisdiction over “the allotment of dower in land in the cases provided by law” under § 12-13-1(b). Where a homestead or a spouse’s interest is involved, get advice before conveying.
You can sign a deed conveying anything you own. Whether it holds up against the world is a different question. Under § 35-4-90(a) an unrecorded conveyance is void as to purchasers for value, mortgagees and judgment creditors without notice.
A gift deed to a child that never reaches the probate office has not really disposed of anything.
Ala. Code §§ 35-4-50, 35-4-90.Thinking about transferring property to family?
The deed you choose has consequences for taxes, for Medicaid and for what happens if the recipient is sued or divorced. One conversation first is worth a great deal.
Disposition at death
The right to decide what happens to your property after you die is part of the same bundle — and it is the one most often lost by inaction.
- By deed, during lifeA survivorship deed passes the property to the co-owner automatically. A life estate reserves your use and fixes who takes afterward. Both keep the property out of probate.
- By willA valid Alabama will directs who receives what. Requirements are in § 43-8-131 — writing, your signature, and at least two witnesses.
- By trustProperty titled in a funded trust passes under the trust document without probate.
- By defaultIf you do none of the above, Alabama decides for you under §§ 43-8-41 and 43-8-42. In a blended family that commonly means the surviving spouse takes half and the decedent’s children from a prior relationship take the rest.
Why this matters practically
The reason to understand disposition is not academic. It is that most Alabama title problems come from someone exercising the right imperfectly — a deed that was never recorded, a conveyance by one co-owner who did not own the whole, a life tenant who tried to sell the fee, or a family that never opened an estate and now owns land in twenty fractional shares.
All of those are fixable. All are cheaper to fix early.
Questions about property rights in Alabama
Can one co-owner sell Alabama property without the others?
A tenant in common can convey their own undivided fractional interest, but cannot convey the whole property. A co-owner can also seek partition — Alabama probate courts have jurisdiction over the partition of lands within their counties under § 12-13-1(b). This is why unresolved heir property is risky for a family.
Can I sell a house that still has a mortgage on it?
Yes. The mortgage is paid and released at closing out of the proceeds, which is what the payoff figure on the settlement statement is for. The lien follows the land until it is released, so the release has to be recorded.
What is a life estate and can the life tenant sell?
A life estate gives someone the right to use the property for their lifetime, with a remainderman taking afterward. The life tenant can convey only their life interest — a buyer would take an interest that ends at the life tenant’s death. Selling the full fee requires everyone to sign.
Do HOA restrictions limit my right to sell?
Recorded covenants generally run with the land and bind subsequent owners. Some contain rights of first refusal or approval requirements on transfer. Read the recorded declaration before you contract, not after.
Does my spouse have to sign the deed in Alabama?
It depends on how title is held and what interests exist. Alabama recognises dower in the cases provided by law, and homestead considerations can apply. Where a married person is conveying, get advice rather than assuming — a title company will usually raise it, but not always in time.
Can I give my house to my child now instead of in my will?
You can, and sometimes it is right. But an outright gift transfers your basis rather than giving a stepped-up basis at death, exposes the property to your child’s creditors and divorce, and can affect Medicaid eligibility. Compare it against a survivorship deed, a life estate or a trust before you sign.
Bring the deed and we will tell you what it actually does
Deeds, title work, life estates and survivorship across Limestone, Madison, Morgan, Lauderdale, Colbert, Franklin and Lawrence Counties.
Daniel Shawn Pickens
Attorney at Daniel S. Pickens Law in Athens, Alabama. The firm handles estate planning, probate, real estate closings and title work, deeds, business formation and contracts for families and businesses across Limestone, Madison, Morgan, Lauderdale, Colbert, Franklin and Lawrence Counties.
Questions about a real estate matter? Email closing@dsp.law or call 256-434-1678.
Daniel S. Pickens Law · 300 West Green Street, Athens, Alabama 35611
