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Back September 11, 2019

Types of Easements in North Carolina

Easements in North Carolina

So you bought some landlocked real estate where you’re stuck trespassing on another person’s land to get in and out of your property. What do you do? In this article we discuss some North Carolina legal solutions that may be available to you in this situation. We strongly recommend that you seek the assistance of a licensed North Carolina Real Estate Attorney to help you properly resolve your landlocked property issue. This blog is not to be construed as legal advice.

What is an Easement?

An easement is an interest in land, and is generally created by a deed. Borders v. Yarbrough, 237 N.C. 540, 75 S.E. 2d 541, (N.C. 1953). An Easement is a right to make some use of land owned by another without taking a part thereof. An Easement is a non-possessory interest and serves only the limited purpose that give rise to its creation. Adelman v. Gantt, 795 S.E. 2d 798, 2016 N.C. App. citing Builders Supplies Co. v. Gainey 282 N.C. 261, 266, 192 S.E. 2d 449, 453 (1972). The interest is the right of the owner of one piece of property to ingress and egress over an adjacent piece of property owned by another to access a public road. While a neighbor may be friendly enough to allow you to travel over their property to ingress and egress from your property, it is important that you acquire an easement either by your neighbor’s consent or through litigation to ensure that you do not have any issues if you decide to sell your property at a later time, where many potential buyers will refuse to purchase your property unless there is a valid and guaranteed easement for ingress and egress from your property. There are 5 potential avenues for acquiring an easement in North Carolina. These Easements are: Express Easement, Easement Implied from Prior Use, Easement Implied by Necessity, Easement by Prescription, and Easement by Cartway Proceeding.

Express Easement

The easiest way to acquire an easement for ingress and egress from your landlocked property is to acquire an Express Easement from your neighbor. By granting you an Express Easement, your neighbor is granting you a non-possessory interest in their real property to cross over their land to ingress and egress from your property to access a public road. In order to obtain an Express Easement you and your neighbor must execute a valid deed conveying the Express Easement from your neighbor to you. It is important that the Deed properly construes the metes and bounds of the easement location, such as the path, driveway or trail where the Easement is granted on the neighbor’s property. An Express Easement must be sufficiently certain to permit the identification and location of the easement with reasonable certainty. Wiggins v. Short, 122 N.C. App. 322, 469 S.E. 2d 571, 1996 citing Adams v. Severt, 40 N.C. App. 247, 249, 252, S.E. 2d 276, 278 (1979). The deed should convey the Easement from your neighbor and all subsequent grantees or assigns of your neighbor’s property to you and all subsequent grantees and assigns of your property to ensure that no future title issues arise in situations such as if you ever attempted to sell your property and there was a question as to whether your property had a valid Easement for ingress and egress. In other words the Express Easement should create an Easement Appurtenant, which is attached to the real property. This means that your property will be classified as the Dominant Estate and your neighbor’s property will be classified as the Servient Estate upon execution of a valid deed, which means your Easement will Run with the Land. The alternative Easement would be an Easement in Gross which only benefits a specific person. If you sold your property after only having an Easement in Gross, your former property would once again be landlocked without any ingress and egress Easement for the purchaser to access a public road.

Litigation Options

If you are unable to obtain an Express Easement from your neighbor, you may need to resort to one of the litigation options that are applicable to your situation. These Easements must be acquired through Quiet Title Actions in court.

Easement Implied from Prior Use

Basically, in this scenario, you are trying to prove that your property and your neighbor’s property were once one parcel of land and that your requested Easement is necessary to access your property as a result of the severance of the original property. To establish an Easement Implied by Prior Use, plaintiff must prove: (1) there was a common ownership of the dominant and servient parcels of land and a subsequent transfer separated that ownership, (2) before the transfer, the owner used part of the tract for the benefit of the other part, and that this use was “apparent, continuous and permanent,” and (3) the claimed Easement is “necessary” to the use and enjoyment of plaintiff’s land. Adelman v. Gantt, 795 S.E. 2d 798, 2016 N.C. App.

Easement Implied by Necessity

An Easement by Necessity is an Easement Implied by law under certain circumstances. Smith v. Moore, 254 N.C. 186, 190, 118 S.E. 2d 436, 438 (1961). Such Easements are most commonly implied in favor of grantees that have no access to their land except over other lands owned by the grantor or a stranger; the law will imply an easement over the grantor’s land in such a situation. Oliver v. Ernul, 277 N.C. 591, 599, 178 S.E. 2d 393, 397 (1971). In these matters the plaintiff must prove: (1) a conveyance; (2) of a part of the grantor’s land (where grantor retained at least a portion of the adjoining parcel); and (3) after the severance of the two parcels of land, it is necessary for the grantee to pass over the grantor’s retained property to access a public road. The grantee’s parcel of property must be landlocked at the time of conveyance from the common ownership of the parcels. It must be proven that there is no other reasonable way to access the landlocked property from a public road.

Easement by Prescription

In order to prevail in an action to establish an Easement by Prescription, a plaintiff must prove the following elements by the greater weight of the evidence: (1) that the use is adverse, hostile or under claim of right; (2) that the use has been open and notorious such that the true owner had notice of the claim; (3) that the use has been continuous and uninterrupted for a period of at least twenty years; and (4) that there is substantial identity of the Easement claimed throughout the twenty-year period. Potts v. Burnette, 301 N.C. 663, 273 S.E. 2d 285, 1981. To understand the elements of Easement by Prescription check out our (Adverse Possession Blog). Obtaining property by Adverse Possession is similar to obtaining an Easement by Prescription.

Easement by Cartway Proceeding

N.C.G.S. § 136-69(a) provides: If any person, firm, association, or corporation shall be engaged in the cultivation of any land or the cutting and removing of any standing timber, or the working of any quarries, mines, or minerals, or the operating of any industrial or manufacturing plants, or public or private cemetery, or taking action preparatory to the operation of any such enterprises, to which there is leading no public road or other adequate means of transportation, other than a navigable waterway, affording necessary and proper means of ingress thereto and egress therefrom, such person, firm, association, or corporation may institute a special proceeding as set out in N.C.G.S. § 136-68, and if it shall be made to appear to the court necessary, reasonable and just that such person shall have a private way to a public road or watercourse or railroad over the lands of other persons, the court shall appoint a jury to view of three disinterested freeholders to view the premises and lay off a cartway, tramway, or railway of not less than 18 feet in width, or cableways, chutes, and flumes, and assess the damages the owners of the land crossed may sustain thereby, and make report of their finding in writing to the clerk of the superior court. Basically, this law allows private property owners to use the State’s Eminent Doman Power (government right to seize private property for public use with payment of fair market value compensation, as recognized under the Fifth Amendment of the U.S. Constitution) to obtain a vital Easement. Keep in mind that this Easement cannot be used to gain public road access to landlocked parcels that are dedicated or zoned to residential use only. One last consideration with any Easement that is created is who will maintain the Easement.

Who is Responsible for Maintaining an Easement?

The North Carolina Supreme Court has held that the dominant estate holder is responsible for maintaining the easement location. Unless language in the easement provides otherwise, the servient estate holder has no obligation to maintain the easement area. As a result, if the character of the easement is such that a failure to keep it in repair will result in injury to the servient estate or to third persons, the owner of the easement will be liable in damages for the injury so caused. Green v. Duke Power Co., 305 N.C. 603 (N.C. 1982).

Get a Proper Case Evaluation

We strongly encourage you to seek the advice of a licensed North Carolina Real Estate Attorney if you need to obtain an Easement to landlocked Real Estate. To schedule a consultation today, contact Biazzo & Panchenko Law, PLLC. This blog is not to be construed as legal advice.

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