North Carolina Right-Of-Way Laws Explained
Property right-of-way in North Carolina is essentially a legal right allowing one entity to pass through or otherwise use the property of another. This right is grounded in common law, and while not currently codified in the North Carolina General Statutes, the concept has a long history in the state’s jurisprudence. Such easements can cover any number of functions, from simple driveway access to major electric transmission lines, and the law surrounding their use continues to evolve .
Where public use is involved, the procedure for obtaining right-of-way can be somewhat more complicated—requiring eminent domain proceedings in some cases—particularly when government entities are involved. Further, such use can be far more disruptive to the affected landowner, who must cede certain rights to the agency (or entity) getting the right-of-way, and provide access to the affected areas for maintenance and other purposes.
Understanding these means of granting or receiving property right-of-way is critical both for landowners with a desire to preserve their property rights and value, and also for developers and agencies looking to obtain right-of-way provisions.
Creating a Right-Of-Way Over Private Property
In North Carolina, an express easement for right-of-way to a dominant estate may be created by deed. N.C. Gen. Stat. § 41-11. In the absence of a statutory exception, a conveyance of an easement in private property must be executed with the same formalities as a deed of real estate. Id. A right-of-way acquired by deed is generally an express easement for right-of-way over the estate for the purpose of egress and ingress on foot or with vehicles, livestock, or produce; and burdens the fee simple title to the servient estate. Rivers v. Cummings, 2 N.C. App. 165, 162 S.E.2d 642 (N.C. App. 1968). An exception exists wherein a prescriptive rights-of-way may be established by "long usage" without a writing. Such prescriptive rights may be forfeited through failure to use for ten (10) continuous years. N.C. Gen. Stat. § 41-11, 12.
It is important to remember that an easement by grant is a permanent grant of the right of way in the property so burdened, and it cannot be exercised in a way inconsistent with the rights granted. Cokins v. Roberts, 106 N.C. App. 368, 417 S.E.2d 253 (N.C. App. 1992). If the rights are exercised in a way that is inconsistent with the terms of the grant, the owner of the servient estate can force a cessation of the easement and stop the inconsiderate user from interfering with the possessed property. Id.
Types of North Carolina Right-Of-Ways
North Carolina law recognizes several types of right-of-way through its statutes and case law. They include easements, public access roads and other rights-of-way.
An easement is a non-possessory interest in the real property of another. N.C. Gen. Stat. § 41-20. To be valid, an easement must be in writing if it will last for more than three years. N.C. Gen. Stat. § 41-5. However, an exception to the statute of frauds doctrine allows for oral easements that are executed and fully performed. From this, the general rule of easements has developed: an easement may exist and be enforced if (i) there is an agreement, either written or spoken or evidenced by conduct, for an easement; (ii) that is validly created by deed, prescription or implication, as discussed above; (iii) the easement holder is using the easement; (iv) for a specific purpose that is expressly described by statements or conduct; (v) over a specific parcel of land not owned by the person claiming the easement and which was under the control of the easement holder before or when he or she made the use of the easement; (vi) at the same time as the servient estate holder is using the servient estate. Harris v. Tabor, 391 S.E.2d 634, 636 (N.C. Ct. App. 1990).
There are several types of easements. For example, a right-of-way easement gives the holder the right to pass over the property, or to traverse over someone else’s property to access his or her own. A private road easement conveys the right to have a private road on the grantor’s land for the grantee or his assigns. A utility easement permits the holder of that easement to use a portion of someone’s property for the maintenance of utilities. A drainage easement permits the holder to drain his or her property onto the grantor’s property.
However, the existence of an easement is not forever. An easement may be held only for the time period expressed in the easement agreement. If this is not expressly set forth, North Carolina law states that the maximum duration of an easement is for a thirty-year period. N.C. Gen. Stat. § 1-49(2), 1-49(3).
A public access road is similar to a right-of-way easement, but it denotes a right-of-way to allow the public to traverse over a certain area. In this case, a property owner dedicates the right-of-way to use by the public, and through acceptance by the appropriate government authority, the public access road becomes a public road. A public access road must be either (i) offered for public use with the intention to dedicate the road; or (ii) otherwise established by prescription. Holliman v. Bulwinkle, 31 S.E.2d 915, 917 (1954).
Right-of-Way Issues and Legal Battles
The disputes that arise in relation to right-of-way are varied. Just as the easement holder and land owner can use the right-of-way in differing ways, so can the parties litigate the right-of-way in different ways and attempt to construe the dimensions and uses of the right-of-way in different manners. One court noted that "disputes over whether a way is sufficiently well marked are common." McGowan v. Crowder, 209 N.C. 796, 799 (1940). Indeed , even where the scope of an express easement cannot be determined from the assignment document or grant, courts permit the finder of fact to determine the scope of the right-of-way based upon the "nature of the easement, the normal, usual and customary use of such an easement under like circumstances and the specific use by the [claiming party] . . . over the prescriptive period." Chambley v. King, 157 N.C. App. 242, 247 (2003). A proper legal analysis of the right-of-way is needed to reach a resolution of the dispute between parties.
How To Terminate or Change a Right-of-Way
In North Carolina, the right-of-way statutes allow the parties to agree to either modify or terminate any right-of-way granted regardless of whether they contain a provision to that effect. They can also be modified by mutual agreement and recorded by both parties according to the statute, or they can be terminated by one party without the consent of the other. However, once a party chooses to terminate an easement, there is no going back and that party must proceed accordingly.
The first step is getting a Deed of Termination prepared that conforms to the statutory requirements of N.C.G.S. 136-64 and to the language from the recorded easement. Under the statute, if a road is completely abandoned for a period of 5 years, it can be terminated by the owner of the servient tenement without the permission of the dominant tenement. There are several things to consider with this termination process:
While this mechanism for termination does not require the permission of the dominant tenement, you must consider whether it is necessary to have one or whether a quit claim deed is sufficient to clear the title of the servient tenement.
Recent Developments and Case Law In North Carolina Right-of-Way
This past year, there have been several administrative changes that impact North Carolina Property right-of-way laws. The Dove Decision administered by the North Carolina Department of Transportation (NCDOT) previously required that the quotation for to sell their interest in Property right-of-way be 105% of the price offered by the NCDOT appraisal. The new law requires that the quote from the owner must be 125% of the price offered in the NCDOT appraisal.
One legal case has made an impact on the Property right-of-way laws in North Carolina this year . In the case of NCDOT v. Community Church of Christ, the North Carolina Court of Appeals recently ruled that NCDOT did not have to offer abutting landowners the right-of-way their Property constituted and built upon prior to condemning a portion of the Property. This ruling opened the door for NCDOT to expand their rights into private property that was previously protected, leading to controversy on what a landowner can do in their own yard or outside gardens.