Easement Basics 101
In most instances, a North Carolina property owner simply uses their property without thinking twice about their rights as they relate to the surface of the ground under their feet and the air above. In other words, someone who owns a piece of land in North Carolina owns everything within its boundaries and can use it as they please (subject, of course, to the use and planning restrictions that some municipalities implement via zoning and ordinances). However, the law recognizes exceptions to this general rule. These exceptions are called easements.
An easement represents an interest that a person has in the property of another whereby the person is granted a right of use or privileged use concerning the property of another. An easement may arise from grant of deed, reservation, implication, necessity, prescription, or condemnation . For example, if you own land next to a piece of property that someone else owns and you cut a road to connect your land to the road on their land, a "road easement" exists in favor of the person using the roadway during the times of day specified by law.
While North Carolina property owners have an extensive amount of rights with regard to how they may use their property, North Carolina easement rights have been granted and recognized since Colonial times. Most estate planning documents require that easements be surveyed and documented in detail between adjoining residents. For example, servitude easements are prevalent for properties that share a driveway.
Easements can be beneficial and they can be a burden. At times, an easement grants you a great deal of rights in regard to your property that you may not even understand. On the contrary, at other times, an easement may limit the ways in which you are able to use your property.
Common Types of Easements in North Carolina
In North Carolina, the most common type of easement is an easement by express grant. This means that the property owner has a driveway easement to cross over the neighbor’s property (including the right to park on the neighbor’s property) but only if the easement agreement says that is the case. An express easement is written or spoken; it can even be an exchange of emails and text messages. Importantly, the title company will need to have the driveway easement recorded so the easement is enforceable against future property owners.
For example, if Danny wants to maintain access to his lakefront property in the event his neighbor Bob eventually sells his property, they will need an express easement included in their written real estate closing documents. The nature of these written documents will be determined by the tax status of the lot, which may qualify for a different type of easement that is less expensive.
There are other types of driveway easements available in North Carolina. The first type, the easement by implication, does not require an express easement from the neighbor to the neighbor’s driveway. Instead, the law establishes the easement automatically if the following elements are present: (1) Ancillary circumstances; (2) additional circumstances that created a specific necessity; and (3) a driveway lawfully used to reach the adjacent property." The specific type of necessity means that a person using the driveway is doing it for a valid purpose; thus, a homeowner wants to use the neighbor’s driveway to access the place of business they run out of their home.
In addition, adverse possession laws apply to driveway easements. Adverse possession applies when a property owner claims another’s land for a statutory period by: Furthermore, the possession must be open, hostile (i.e., with a good enough faith belief), exclusive, continuous, and uninterrupted for 20 years without the permission of the original landowner.
In North Carolina, according to the famous case of Smith v. Moore, the person claiming adverse possession of a driveway easement must additionally prove that they (1) claim a right to an easement that is not claimed by the original landowner and (2) act continuously in ways that would put the property owner on notice of the claim to the driveway easement. If the deed states the person may possess the property, then it is de facto easement by express grant instead of adverse possession.
Lastly, easements may also be required by prescription. This occurs when a property owner who uses the neighbor’s driveway fails to assert rights against the other property owner to obtain an easement over time. However, even if the ten years expired, having an easement placed on the property will help clarify management of the property.
Driveway Easement Creation Requirements
When it comes to an easement for a driveway in North Carolina, there are three potential methods of obtaining such an easement. An easement may be obtained by grant, reservation or necessity. Two of the three methods of obtaining a driveway easement require that the property owner have a recorded survey of the property on which the driveway is situated.
An easement by grant is an easement that is prepared and recorded in the same manner that other real estate conveyances are normally recorded. In the recorded easement, the grantor conveys to the grantee, and the grantee accepts the grant. The recorded easement also includes a special reference to the easement being for a driveway. In many respects, a driveway easement is much like an easement for power lines, and since power line easements are routinely recorded, a recorded easement for a driveway in NC should be no surprise.
In the context of a mailing list for a partition, you may receive a notice of the filing of such an easement, along with other notices for the partition proceedings. An easement by grant often identifies the easement area by plat, and may not include a recorded plat, so the spatial location of the easement may only be located by approximating the area on the basis of the description in the easement. It is not uncommon for an easement by grant to include a metes and bounds description, possibly followed by a reference to a recorded survey. If such a reference exists, a property survey is needed to be able to determine where the driveway is located.
An easement by reservation is similar to an easement by grant except that the owner of the secured dominant tract obtains the easement from the owner of the servient tract. Again, given that the owners are different, such an easement is likely to require a plat and some uncertainty will remain without a survey. Therefore, lots should not be adjoined or made contiguous for the purpose of granting a driveway easement. If adjacent lots or contiguous lots are owned by the same person, it is often better practice to combine the ownership of the lots prior to granting an easement along the common boundary into a single lot with a single deed.
An easement by necessity is an easement that can be established where a landlocked tract requires a road from the improved parcel to a public road. Under such circumstances, it is not uncommon for a court to determine the location of the easement by reference to a survey. Before a judge decides the location of the easement, the court will normally require that the applicant have offered to purchase the right-of-way from the current owner for value and at least one written offer must be made to the owner of the tract which is adjacent to the tract with the landlocked parcel. Even though the easement may be for a width that is the minimum width generally applicable to roads, the party obtaining the easement may ask the court for an easement that is many times wider than the roadway. In such an instance, the court may award the easement requested by the applicant and may accept the wider easement, especially if the applicant has data suggesting that the desired location is the best location for a road.
In sum, the usual conditions precedent to a successfully established driveway easement is either a recorded grant of the easement or a survey. With an easement by grant, there are no parcel numbers and the easement area needs to be determined by its location from a description in the recorded easement. An easement by necessity is not subject to a recorded easement, yet requires a survey and may not include a metes and bounds description but rather a description by reference to a survey in the record book.
Dispute Resolution for Driveway Easements
Disputes over the use or accessibility of a driveway easement often arise and may lead to conflicts between the dominant and servient estate owners. For example, one party may use the easement in a manner that exceeds the rights granted under their easement. Commonly, a dominant estate owner may widen, pave, or otherwise improve the area subject to the easement. However, the easement’s non-exclusivity limits the dominant estate owner’s use of the property to that which is reasonable. On the other hand, a servient estate owner may erect a fence or other obstruction preventing the dominant estate owner from accessing the area subject to the easement.
When parties are unable to resolve their conflicts amicably, they can commence an action to enforce their rights in the Superior Court of North Carolina. A party may file for a motion for temporary restraining order, preliminary injunction, or permanent injunction. A temporary restraining order is used to preserve the status quo pending a decision on the motion for preliminary injunction. If the restrictive action is ongoing, a party may file a motion for a preliminary injunction immediately. Permanent injunctions are often issued after trial.
The burden rests with the party seeking an injunction to show that a greater risk of harm would result by withholding the injunction than is likely to occur by issuing the injunction. The court must weigh these harms and decide whether the hardship of the moving party outweighs the harm to the party opposing the injunction.
In all three injunctions, the plaintiff must show there is no adequate remedy at law and irreparable harm will occur if the injunction is not issued. An adequate remedy exists if the harm may be fully recovered in monetary damages. An irreparable harm exists when damages are difficult to measure or when the injury cannot be compensated after the fact.
Changing or Ending an Easement
The execution of a driveway easement does not always end the story. Rather, unless an easement is irrevocable or indefinite, an easement may be terminated or modified. Moreover, the parties may want to amend or terminate an easement at some future point after its original creation. A drive may be terminated from outside the parties. A court may terminate an easement under its equitable power to do so. The circumstances that may warrant termination of an easement are similar to those justifying creation in the first instance. For instance, a court will terminate an easement where it was granted when it should not have been or where the terms upon which it was originally given have changed. Under the common law, a court will terminate an easement granted for a specific purpose when that purpose is accomplished. (e.g., termination of a utility easement once the utility is no longer using the easement).
Courts may also terminate an easement for a covenant that runs with the land and restricts its use resulting in an implied release when the restriction becomes obsolete . For example, a driveway easement allowing access to a coal mine in order to haul coal may become obsolete once the coal mine is closed and thus terminated by a court.
Modification may be sought in several ways. Like termination, an easement may be redefined by the court if the terms of the easement have become obsolete or the purpose of the easement has been served. For instance, if an easement allows access to a public road but the owners of the dominant estate can no longer gain access to the road, a court may terminate the easement. Additionally, an easement may be modified if the procedure for its construction was not followed. Courts may also terminate or modify an easement by agreement, which will be discussed next.
An agreement to modify or terminate an easement is a contract between the parties. A majority of states are in accord and allow parties to modify or terminate an easement in writing, orally, and even by conduct. Indeed, even if the original agreement creating the easement was not properly executed, the parties may create an enforceable easement by modifying or terminating it. Alternatively, the termination or modification may be executed in conjunction with a recorded deed.
How Driveway Easements Affect Property Value
With regard to driveway easements, some people worry that having a common driveway easement will hurt the value of their property. These people are concerned that a common driveway easement could make their property harder to sell. Examples of why this concern could be valid are: if there is only room for one car on the common driveway easement and two homes use the driveway, then there is a concern about whether one homeowner may block the other homeowner’s ability to get out of their home in the event of an emergency. In another example, one homeowner could park their car in such a way that it prevents the other homeowner from accessing his/her house.
One of the experts with whom I spoke regarding the effect of driveway easements on property value is my law partner Reid Phillips. Reid told me that he has seen driveway easements hurt a property’s value due to fire and police department concerns. If a fire truck cannot get to a house due to a common driveway easement there could be a substantial drop in the market value of each home.
One of my clients, whose driveway easement was contested in her neighborhood, recently told me about the 40% less value of her home as compared to similarly situated homes in her area. Her home had a driveway easement with a neighbor, and she would not sell her home unless the driveway easement containing specific driveway maintenance terms was included in any contract of sale. Thus, my client understood the negative impact of a driveway easement between her and a neighbor. Interestingly, my client sold her home shortly after it being listed by a Realtor. The Realtor was concerned that the driveway easement would be a detriment to the marketability of the home, but did not receive a lower offer than the expected market value for her home without a driveway easement.
It is possible that if a driveway easement provides for an independent land use for the dominant estate, then the property value of each home could be higher. For example, if two homes utilize a common driveway easement, and if the common driveway easement also contains a restriction preventing an owner from building a garage or carport, then the value of each property could be higher in the event a home is sold with a common driveway easement. Reasonable garage and carport costs for the tenants would be higher than the costs to build the typical driveway only on the lot.
Helpful Tips and Considerations for Easement Agreements
For buyers and owners of burdened servient estates, we offer the following practical tips for dealing with driveway easements. First, if faced with potential driveway encroachment, take a long hard look at what part (if any) of the encroached area is unreasonably necessary for access to the dominant estate holder’s property. If the encroachment is objectionable or larger than strictly necessary, you do have limited abilities to force compliance. For instance, the portion of the encroachment that is wider than the easement is not protected by the easement and may be removed at any time. The same rule applies to encroachments beyond the total depth of the easement. Easements cannot be extended by encroachment. Second, for those homeowners with traditional 20 foot strip easements , consider whether you want to grant a larger easement by recordable document that more clearly defines location and dimensions. Such a document will provide greater protection for all parties in the event of further encroachments in the future. For buyers, you need to inquire about burdened properties to learn whether a driveway encroachment exists or may arise in the future. If so, either the property should not be purchased, or certain infrastructure improvements designed to limit encroachment should be installed prior to purchase. Above all, remain on good terms with your neighbors. Nearly all of the cases we have examined were inter-neighbor disputes arising from other bad blood. While that will not solve all problems, it should help you keep main road access to your property.
