This article addresses a common issue that often arises with respect to real estate: access. If an owner’s property does not abut a public road, an easement may be required.
A. Easements Generally. An easement is a right to use or enjoy the land of another. An easement “in gross” is for a specific individual, which may terminate in the future (such as upon death of a grantee); an appurtenant easement runs with the land. See, generally, Skvarla v. Park, 62 N.C. App. 482, 303 S.E.2d 354 (1983); Gibbs v. Wright, 17 N.C. App. 495, 195 S.E.2d 40 (1973). An easement’s scope may be limited (i.e., only for pedestrian or vehicle ingress, egress, or regress) or unlimited (e.g., above-ground utilities).
B. Express Easements, Reservation of Easements, & Master Declarations
1. Express. An easement by express grant, as an interest in land, is subject to the Statute of Frauds and thus must be in writing. Shingleton v. State, 260 N.C. 451, 133 S.E.2d 183 (1963); N.C. Gen. Stat. § 22-2. Care should be given to define both the dominant and servient estate and the exact size and location of the easement. Deeds of easement must be recorded. See N.C. Gen. Stat. § 47-27. Written easements are construed pursuant to the rules governing contracts. Higdon v. Davis, 315 N.C. 208, 337 S.E.2d 543 (1985).
The importance of creating an express easement by an actual, physical survey drawn by a licensed professional land surveyor should not be underestimated. See 21 NCAC 56.0701. Criminal penalties [i.e. a Class 1 misdemeanor] can be imposed for transferring lots in unapproved subdivisions. Such penalties are applicable even when a description is by metes and bounds. N.C. Gen. Stat. § 160D-807. Building permits required pursuant to G.S. 160D-1110 may be denied for lots that have been illegally subdivided. Certain items are excluded from a subdivision, to include: (1) the combinations or recombinations when the total number of lots is not increased; (2) the division of land into parcels greater than ten (10) acres when no street right-of-ways are involved; (3) public acquisition for widening or opening streets; or (4) division no greater than two (2) acres into not more than three (3) lots, no street right-of-ways are involved, and the lots exceed standards of county per its subdivision regulations. N.C. Gen. Stat. § 160D-802. No property description should be drawn from a plat marked “preliminary”, as it may not have taken into account setbacks, environmental health regulations, and subdivision ordinances. See 21 NCAC 56.1604. While it is permissible to record a map or other non-approved plat as an exhibit to an instrument (such as an easement) for illustrative purposes, such exhibit must contain the following language: “This map is not a certified survey and has not been reviewed by a local government agency for compliance with any applicable land development regulations.” N.C. Gen. Stat. § 47-30(n).
2. Always “Reserve”; Never “Except”. One cannot “except” an easement in favor of oneself, but rather may “reserve” an easement over a tract being conveyed. 1 Patrick K. Hetrick & James B. McLaughlin Jr., Webster’s Real Estate Law in North Carolina ‘ 15‑10 (5th ed. 1994).
3. Master Declarations. For larger developments, familiarity with N.C. Gen. Stat. § 39-6.4, addressing the creation of easements, restrictions, and conditions, is helpful, and multiple points of access may be required.
C. Implied Easements.
As opposed to express easements, reservation of rights, and the declaration contexts addressed above, easements can be created by implication by many ways. Absent written consent of all affected parties, a court must determine the location and scope of an implied easement. Some of the more common implied easements include:
1. Easement by Necessity. In certain circumstances, a landlocked property owner can gain access to property through an implied easement by necessity; such relief is afforded if there is no other outlet for ingress or egress. An easement by necessity is created, if at all, at the time land is divided; “[w]here a grantor conveys land entirely surrounded by his own land, and there is no outlet for ingress and regress, the law will imply an “easement by necessity” for the grantee to pass over the grantor’s land so as to reach the public road. The same rule applies if the grantee’s land is surrounded by the lands of the grantor and the lands of others.” 1 Webster, supra § 15-13. “A way of necessity arises when one grants a parcel of land surrounded by his other land, or when the grantee has no access to it except over the grantor’s other land or land of a stranger. In such cases, grantor impliedly grants a right-of-way over his land as an incident to purchaser’s occupation and enjoyment of the grant.” Oliver v. Ernul, 277 N.C. 591, 599, 178 S.E.2d 393, 397 (1971). “[T]he easement must arise, if at all, at the time of the conveyance from common ownership.” Broyhill v. Coppage, 79 N.C. App. 221, 226, 339 S.E.2d 32, 37 (1986). “Consequently, all elements required for the easement’s creation must exist at the time of the severance of the alleged dominant and servient estates.” Webster’s § 15-13; Woodring v. Swieter et al, 180 N.C. App. 362, 637 S.E.2d 269 (2006). There must be a showing that an easement by necessity was created at the time of the conveyance of the dominant tract. An implied easement of necessity cannot be presumed over the land of a stranger; privity of title must exist. If there is no grantor-grantee relationship and an owner has no access to a public road, the owner’s remedy is a statutory cartway proceeding. See Broyhill at 225, 36.
2. Easement Implied from Prior Use. An easement may be implied from prior use when there is a conveyance of a portion of a grantor’s land and prior to the conveyance there was a usage of the land in such a manner that if the two tracts had in fact been separate tracts, one tract would have been servient to the other in a way which looked like an easement appurtenant to the other tract. See Woodring v. Swieter, 180 N.C. App. 362, 637 S.E.2d 269 (2006). The prior usage must be necessary to the use of the part to which it would be appurtenant, and, further, the prior usage must be apparent or visible for an easement will be implied from prior use. “To establish an easement by implication, a party must prove that: (1) there was a common ownership of the dominant and servient parcels and a transfer which separates 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 the claimant’s land. Tedder v. Alford, 128 N.C. App. 27, 32-33, 493 S.E.2d 487, 490 (1997), disc. review denied, 348 N.C. 290, 501 S.E.2d 917 (1998).
The analysis to show this type of implied easement would include: (a) research into the common ownership of dominant and servient parcels, and identifying a transfer which separates ownership; (b) before the transfer, an owner used part of tract for the benefit of the other part, and this use was apparent, continuous, and permanent; and (c) the claimed easement is necessary to the use and enjoyment of claimant’s land. Such an easement is designed to address the probable expectations of a grantor and grantee that an existing use of part of land being conveyed would continue after the transfer (emphasis added). See Id. at 33, 493 S.E.2d at 490. To establish an implied easement by prior use, one must show the “use of the purported easement existed prior to the severance of title . . . and that at the time of the severance, [the grantor] intended that the use would continue.” CDC Pineville, LLC v. UDRT of N.C., LLC, 174 N.C. App. 644, 654, 622 S.E.2d 512, 519 (2005), disc. review denied, 360 N.C. 478, 630 S.E.2d 925 (2006). It should be noted that many North Carolina cases recognizing an easement by prior use have required a period exceeding thirty (30) years. See id. (citing Potter v. Potter, 251 N.C. 760, 112 S.E.2d 569 (1960); see also Spruill v. Nixon, 238 N.C. 523, 78 S.E.2d 323 (1953) (at least 35 years); Biggers v. Evangelist, 71 N.C. App. 35, 321 S.E.2d 524 (1984), disc. review denied, 313 N.C. 327, 329 S.E.2d 384 (1985) (30 years); McGee v. McGee, 32 N.C. App. 726, 233 S.E.2d 675 (1977) (60 years); Dorman v. Wayah Valley Ranch, Inc., 6 N.C. App. 497, 170 S.E.2d 509 (1969) (42 years).
3. Quasi-Easement/Doctrine of Visible Easements. As a general rule, a vendee is presumed to have contracted to accept land subject to visible easements of an open and notorious nature. Waters v. N.C. Phosphate Corp., 310 N.C. 438, 312 S.E.2d 428 (1984). “[W]here, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude, at the time of the severance, is in use and is reasonably necessary for the fair enjoyment of the other part of the estate, then upon a severance of the ownership, a grant of the right to continue such use arises by implication of law.” Pritchard v. Scott, 254 N.C. 277, 281, 118 S.E.2d 890, 893 (1961); see also 17A Am. Jur., Easements § 41.
4. Easement by Estoppel. In general, estoppel prevents a party from claiming a right to the detriment of another who was justified in relying on such conduct and acts accordingly. An easement by estoppel: “‘may arise where one cognizant of his own right keeps silent in the knowledge that another will be innocently and ignorantly induced to . . . expend money or labor in reliance on the existence of such an easement.’” Delk v. Hill, 89 N.C. App. 83, 87, 365 S.E.2d 218, 221 (1988) (quoting 1 Webster, supra, § 316 (rev. ed. 1981) [see §15-16 of 5th ed.]), disc. review denied, 322 N.C. 605, 370 S.E.2d 244 (1988). The equitable theory of estoppel relies on fact, and facts are often debated and must be proven in court by the greater weight of the evidence.
5. Prescriptive Easement. To establish an easement by prescription, a party mush show: (a) a use adverse, hostile or under a claim of right; (b) the use has been open and notorious such that the true owner had notice of the claim; (c) the use has been continuous and uninterrupted for at least twenty (20) years; and (d) that there has been a substantial identity of the easement claimed throughout the twenty (20) year period. See Concerned Citizens of Brunswick County Taxpayers Ass’n v. State, 329 N.C. 37, 45, 404 S.E.2d 677, 682 (1991). An easement by prescription is akin to adverse possession, and the moving party bears the burden of showing each element thereof. Use of another’s land is presumed to be permissive unless the contrary appears. Id. A hostile use has been defined as “a use of such nature and exercised under such circumstances as to manifest and give notice that the use is being made under claim of right.” Dulin v. Faires, 266 N.C. 257, 261, 145 S.E.2d 873, 875 (1966).
While often there is little question that a path exists, the size, condition, and scope of such path may have changed greatly over the years. Who has maintained the path over the years? Have all the necessary characteristics been shown, and for the necessary statutory period? Remember that mere permissive use of a way over another’s land cannot ripen into an easement by prescription no matter how long it continues. Yadkin Valley Land Co. v. Baker, 141 N.C. App. 636, 539 S.E.2d 685 (2000). Prescriptive easements are not favored under the law, and it can be expensive to prove an adverse, hostile, open, notorious, or continuous use for greater than a twenty (20) year period sufficient to establish a prescriptive easement.
Without an express easement, it may be necessary to file a declaratory judgment action to have a court interpret the rights of parties to implied easements. A statutory cartway proceeding under N.C. Gen. Stat. § 136-69 may be an alternative for limited access to remove crops, timber or other materials from a property. An easement’s scope cannot be overburdened, and injunctive relief may be available. Maintenance issues surrounding a non-exclusive easement can often prove problematic. Trash and other debris may be unsightly, but substantial capital improvements for grading, upfit, or water crossings get expensive. With multiple users, road maintenance agreements can address how costs and expenses for upkeep and maintenance are shared. For many individuals, the value of their land constitutes a majority of their net worth, and the value of that property may be greatly impacted by the location, width and scope of one’s access.