Finding out your property is landlocked with no private or public access to a road is not news that any landowner in North Carolina wants to hear. If you have friendly neighbors that are willing to grant you an easement for access to a road, your problem is solved. However, difficulties may arise and litigation may be triggered when neighbors are not getting along and are unwilling to provide access to the landlocked parcel. With the help of an attorney, there are several methods to enable legal access to his or her property by an easement.
An easement is the right of one owner of land to use the land of another for a specific purpose. In the case of landlocked property, an easement is needed to allow ingress & egress over an adjacent owner’s property for access to a public road.
1) EASEMENT IMPLIED FROM PRIOR USE: In order to establish an easement implied from prior use over a driveway or road, the following legal elements must be met: (1) a conveyance (transfer of ownership); (2) of a part of the grantor’s land; (3) before the conveyance there was usage on the retained parcel that, had the two parts then been severed, could have been the subject of an easement; (4) the usage is necessary to the parcel that was conveyed away; and (5) the usage is apparent. The landlocked owner must show the court that the road or driveway was used by the previous common owner prior to conveyance, that it was clearly visible and that it is needed in order to access the landlocked parcel.
2) EASEMENT IMPLIED BY NECESSITY: Unlike easements implied from prior use, easements implied by necessity do not require proof of prior and apparent use, and a pre-existing use does not have to be present. The legal elements for this type of easement include: (1) a conveyance; (2) of a part of the grantor’s land (again, the grantor retains a portion of the adjoining parcel); and (3) after the severance of the two parcels, it is necessary to pass over one of them for access. The parcel must be landlocked at the time of conveyance from the common ownership of the parcels. This legal concept cannot be based on convenience; there must be a degree of necessity, no other way to reach the landlocked property.
3) EASEMENT BY PRESCRIPTION: A prescription is defined as the actual, open, hostile, notorious, continuous and exclusive use of another’s land. If the prescriptive act (use of a road) continues for an uninterrupted 20 years in North Carolina, the landlocked owner acquires the rights to use the road. This concept is similar to adverse possession; adverse use of the road creates an easement. The landlocked owner must prove the road was used (open and continuously) and without permission for a continuous period in excess of 20 years. In North Carolina, there is a presumption that the use of a road is permissive. Therefore, a landlocked owner must prove permission to use the road was neither given nor sought.
4) EASEMENT BY CARTWAY PROCEEDING: In 1978, North Carolina passed a cartway law (NCGS §136-69) which gives private landowners the right to use the State’s power of eminent domain (the right of a government or its agent to seize private property for public use with payment of compensation). If an easement cannot be established by the above easement concepts, a landlocked owner may be able to initiate a cartway proceeding to establish an easement for access to a road. In order to initiate this proceeding, the landowner must prove the following elements: (1) that the easement is necessary for cultivating land, cutting timber, quarrying, industrial development, or a cemetery; (2) that there is not a public road; and (3) that the cartway is necessary, just, and reasonable for landowner to gain access over the land of another. Consequently, this proceeding cannot be used for landlocked parcels dedicated to residential use only. If a cartway is granted, the landlocked owner must pay the adjoining landowner for the fair market value of the easement.
The best way to obtain an easement is to work with your neighbors, especially if you have a skilled attorney to negotiate the terms. If your neighbors are not willing to negotiate an easement, an attorney can also help determine your rights and if one of the above legal remedies is available based on the facts of your case.
Published by Bess Harris Reynolds on March 6, 2017