What is an Easement?
North Carolina real estate law often involves restrictions on property. A restriction can be a covenant requiring property owners in a subdivision to keep the lawn mowed and weeds trimmed, or the prohibition by a homeowner’s association against parking a trailer in the driveway. A restriction can also be an easement, which gives someone else a right to use a portion of your property that wouldn’t otherwise be allowed.
The term easement is used in several different contexts so it is important to know what the term means in relation to your deed. You will also want to understand the scope of your right to use property – how, when where, or even whether the easement can be used.
The basic definition of an easement is that it conveys a right to use a portion of another person’s property for some limited purpose. Commonly encountered easements include underground utilities, drainage, sewer, ingress/egress, and conservation. Easements must be described with as much particularity as possible so that a surveyor or contractor can locate the easement on the ground.
Utilities easements are found most often, and the utility will have recorded its own easement deed in the public records guaranteeing its rights to the portion of your property covered by the easement; typically 15 feet on either side of the actual utility line. Water and sewer companies also use easements so that they have a right to lay a pipeline for water or sewer lines. Drainage easements are found in many lots located lower in a subdivision and assure the owner of the lot below that a channel exists for water runoff.
Ingress and egress easements commonly grant a property owner the right to reach a public road across a portion of another’s property . The easement must be described as completely as possible in the recorded easement deed, including the location, width and any subordination rights of second owners. An ingress and egress easement may be used by the owner of the land granted, plus their guests, to enter and leave the premises. These easements must also deal with the rights of owners on either side of the easement area, and how they may walk or drive in the area.
A conservation easement is an example of an easement created without any specific public use. In a conservation easement a property owner grants to a land trust the right to restrict development and other specified uses of the property. A property owner creates a conservation easement by donating to a land trust a legally binding agreement imposing land use restrictions on property for conservation purposes. Conservation easements are voluntary and can take many forms.
There are two common ways that easements are created by appropriation versus prescription. An appropriation is the legal process by which an entity would go to court and seek a judicial determination that the easement is necessary. A prescription is when someone gets to use a portion of property owned by someone else, and has done so for a long period of time like 20 years.
An easement can be extinguished or extinguished by relinquishment or merger. This means that a property owner chooses to terminate the easement or the easement is terminated due to the owners of the two properties uniting in ownership, such as when one sells property to the owner of the property whose use is limited by the easement; or, the easement is terminated if the property owner who granted the easement abandons the easement by not using it for a long time.
It is always good to have your counsel involved in the proper description of the easement and where it is located on your property.
An Overview of North Carolina Easement Law
North Carolina’s easement laws are specifically regulated by the North Carolina General Statutes. Under N.C. Gen. Stat. § 41-1, easements can be created by express grant, operation of law, or implied grant. Easements may also be created by an express reservation under N.C. Gen. Stat. § 41-19.
The cases involving easements are abundant. Much of the case law regarding the scope of easements focus on the issue of whether the use of the easement went beyond what the easement owner was entitled to. For instance, in Smith v. Bradbury, 131 N.C. App. 574, 579 (1998), the easement allowed for vehicle access to a parcel of land from the right-of-way of a road. The easement holder used the easement but incidentally used polled lumber from the property that was allegedly damaged to create a better road. The case focused on the extent of the damages and whether damages were warranted. The takeaway from the case is that a preliminary injunction is the appropriate remedy, even before the actual damage occurs, if the proposed action may create damage to a property interest, such as an easement.
In other situations, an easement holder may utilize the easement more than was originally contemplated by the servient landowner. For example, in Wiggins v. A&E Elec. Supply., 72 N.C. App. 426, 321 S.E.2d 885 (1984), the plaintiffs owned and operated a farm which they purchased from the defendants. The deed to the plaintiffs contained a right-of-way to access water and electricity on adjoining land that the defendants retained. Several years after the property was sold, the defendant conveyed the land adjacent to the plaintiffs’ property to a new owner. The new owner blocked the right-of-way and prohibited the plaintiffs from accessing it. The plaintiffs brought an action to enforce the right-of-way against the new owner and to quiet title.
The North Carolina Court of Appeals stated that whether a misuse of an easement has occurred is a question of fact to be determined by the fact finder based on the circumstances of the particular case. The Court held that the plaintiffs failed to introduce any evidence to support their argument that the easement should be limited to the benefits which directly inure to their benefit. The Court found that the language of the easement was not restrictive and the easement could be used for all purposes reasonably necessary and convenient for the uses of the easement.
North Carolina has granted easement rights for access of natural gas lines, N.C. Gen. Stat. § 62-158.1; pipelines, N.C. Gen. Stat. § 62-158.3; railroads, N.C. Gen. Stat. § 136-32.1; and sewage, N.C. Gen. Stat. § 153A-239.2. The scope of these easements is limited to the access necessary for the furtherance of the easement-granting authority’s regulatory duties.
Common Types of Easements in North Carolina
Easement by Prescription
An easement by prescription is acquired by engaging in a long-standing, continuous use of another’s property. Examples of exception to the 20-year rule include a prescriptive right to take natural resources from someone’s land, such as timber or water, or a prescriptive right to cross someone’s property to gain necessary access to another area. It is important to note that use alone is not enough. The use must be continuous, uninterrupted, exclusive, and without permission of the owner. A recent case shed light on how easements by prescription are created. In Becker v. Aberration Investors, LLC, siblings all inherited an 83-acre plot of land. A few years later, one sibling sold his share, subject to an easement for church parking. When a dispute arose regarding the location of the easement, the owner of the remaining property filed suit seeking to enforce the easement. The Court of Appeals dismissed the easement due to a lack of specificity as to location. However, finding an implied easement for parking, the Court stated that it could quantify and identify the extent of the easement based on broadcast photographs and surveys.
Easement by Necessity
Easements by necessity arise when a property is completely landlocked, and there is no other means of access. As with easements by prescription, there must be a long-standing, continuous, exclusive, and uninterrupted use, however the essential requirement for a claim of easement by necessity is that the property must have been conveyed such that only including an easement would make the property benefit possible. Easements by necessity cannot be forced upon someone who already has access to the property.
Express Grant of an Easement
An express grant of an easement is precisely what it says: a clearly defined, written easement stating how the property can be used. The conveyance must show the intent of the grantor to create an easement over the servient estate; it must identify the dominant and servient estates; and it must contain an adequate description of the dominant estate, servient estate, and extent of the easement. Failure to comply with NC statute shall not invalidate the easement.
Implied Easements
Implied easements generally arise in three situations: (1) where a subdivision street map has been recorded; (2) where a previous common ownership gives rise to an easement over the prior owner’s land; or (3) where a deed refers to prior, existing easements developing from necessity. The principle behind implied easements is a basically to give a party the least amount necessary to use property as intended by the original owner.
Establishing a North Carolina Easement
Establishing an easement is a relatively simple process in North Carolina. However, like everything else visually appealing and wrought with the ability to enhance property value, there are often legal catches. Below we briefly review the steps and requirements for establishing an easement in North Carolina.
An easement can be established or created in several different ways. The first way an easement may come about is by voluntary consent of the dominant estate owner and the servient estate owner. To do so, the deed must be signed by both parties and should be recorded in the Register of Deeds for the county where the property is located. The second way is by prescription. Prescriptive easements are created by open, continuous, and visible use of the land for at least twenty (20) years under claim of right. Prescriptive easements require no written document, and no agreement between property owners is necessary. Easements may also come about by implication or condemnation order. An easement by implication arises by operation of law which basically means the easement was created by something that happened on the property itself. The implied use must be continuous, permanent, reasonable, and it must give the dominant estate owner a reasonable use of the property. Courts will not impose an implied easement on a servient estate if a reasonable purpose could be achieved without the easement. Condemnation order gives an easement to government agencies, utilities, or other private companies to impose easements over someone’s property. The company, agency, or entity looking to take the easement must record their certificate of condemnation with the Register of Deeds office so they have the ability to enter property to perform whatever work is required without further consent.
Easement Disputes
Disputes over easements are common in North Carolina. Easement holders may fail to use their easement rights, which then may be abandoned by their failure to exercise them for an extended period of time; or may fail to maintain their easement, resulting in interference with the dominant owner’s use. Conversely, dominant owners may wish to interfere with the use of their easement by their servient tenement neighbors, or bundle easements into a larger section of property in an attempt to terminate an easement claimed by one of the neighboring properties. In addition, large real estate developments often grant easements for infrastructure purposes across their properties. Frequently, the easement rights are challenged or denied by the developers, or the easements themselves are challenged by the neighboring property owners. Under circumstances such as these, the resolving of easement disputes presents additional challenges for the developers. Easement holders may work their way out of contested conflicts by reaching an accommodation with their neighbors on the use of their easements. Many easement disputes that one might expect to end up in court, instead, may be resolved through a simple discussion with the goal of letting the use of the easement continue for the good of all of the property owners involved . Even factual disagreements about the location or extent of the easement can be worked out without requiring the courts to resolve the conflicts for them. If accommodations cannot be reached, however, the default is litigation. Zoning decisions can be challenged in the municipal zoning court or in the state courts, depending on their nature. Title issues and easement disputes with respect to historic property boundaries will end up in the general courts, along with the large number of claims concerning the use of slopes and septic systems in subdivision developments. There may also be a great deal of overlap between the types of court actions that are required to settle disputed easement boundaries. For example, claims for trespass and nuisance may run parallel with the request to terminate an easement. The law of adverse possession also requires an examination of the boundaries of the property involved. Although North Carolina court proceedings for the examination of the title to lands are statutorily limited in terms of the types of claims for possession that may be asserted, as long as the recording acts apply to the lands in question, all types of disputes may find their way to the appellate courts through a tangled web of case law.
Altering or Ending an Easement
The issue comes up from time to time as to when an easement can be modified or terminated. North Carolina courts have recognized three types of easement terminations: by expiration of time, operation of law and a voluntary act.
Even where the easement does not require a specific period of time, if the easement is not used for at least 20 years, an easement over land can be terminated by operation of law under G.S. 1-42. The easement must be absolutely and completely abandoned by the owner and he must generally have no intention to resume use of that property. The statute requires nonuse for 20 continuous years for every day of use in order to terminate the easement by operation of law after the expiration of the initial term.
Where the easement is properly abandoned, the easement is deemed to be extinguished by operation of law 20 years after the date of discontinuance (after the last prior adverse user). The use of that statute is a self-executing mechanism. For example, when the owners of a parcel of land having an easement wish to construct a building across the easement, so that the use of the easement will be discontinued, the abutting landowners must wait a period of 20 years before the easement will terminate.
Modification or enlargement of the easement is not a termination of the easement. In rare circumstances, a court may terminate or modify an easement, but only after considering the equities and the rights of the parties involved. However, the courts will probably follow the doctrine set forth in Lillington v. Eastern Carolina Railroad, 146 N.C. 73 (1910). There, the court ruled that the owner of a servient estate cannot terminate an easement previously acquired for a specific purpose by a conveyance of a fee simple subject to easement, the grantor of which had no interest in the servient estate, simply because the stated purpose of the easement has been abandoned by the owner of the easement.
Courts disfavor extinguishing or terminating easements which are acquired for a valuable consideration. Thus, where the purchase price has been paid on the basis of the easement’s location, any termination thereof would be inequitable. Moreover, the courts say that modifying or terminating the easement would result in the servient owner receiving an unfair windfall as a result of receiving the easement in question.
How Easements Affect Property Value
On top of the issues of a potential nuisance lawsuit that may arise from the exercise of an easement, the existence of an easement over your property may affect the value of your property. If you are trying to sell property that is encumbered by an easement, it may be harder to sell your property because the easement may cause the property to be less attractive to potential buyers. Because an easement frequently runs with the land, it may affect the value of adjacent tracts in addition to the tract burdened by the easement .
The fact that an easement is attached to land can be a detriment to the land’s value. On the other hand, the sale of a right-of-way easement may add value to the dominant estate (the estate benefiting from the easement.) An example of how an easement may add value to a property is where a landlocked parcel may not be worth anything unless the owner of the parcel can obtain an easement over an adjoining tract (the tract burdened by the easement) to access a road.