North Carolina Land Rights: What is an Easement?

In general, an "easement" is a legal term that relates to land rights. An easement is a right given to a non-landowner to enter and use land owned by another. Generally, easements "run with the land" in the sense that, once in existence and "made of public record," the easement rights transfer from one owner to the next. For example, consider two neighbors with two separate homes but, for whatever reason, have one common driveway. Maybe, originally, the lot sizes were not sufficient to build two driveways. Let's further imagine that the common driveway is entirely on one of the neighbor's property. Legally, the other neighbor has an easement that allows use of the neighbor's driveway. Now, and let's further assume that the use of the driveway -- the easement -- is listed on the deeds to the two properties. Under these circumstances, the easement "runs with the land" so that all subsequent owners of the neighboring property have the right to use the driveway.

Utility easements are another common example. For example, the local electric company will run power lines from the public street over (or under) the property to connect a house or building to the electrical grid. The utility company does not own the land, but has a right to access the land for the purposes of providing the utility services.

Easements generally allow more than access. Thus, a utility company with an easement ALSO has the right to come onto private property for the purpose of accessing, maintaining, monitoring, and repairing relevant equipment. Likewise, in our driveway example, the neighbor may have the right to repair the driveway if the other neighbor refuses. That being said, depending on the easement, a landowner may have the right to establish reasonable restrictions on access. For example, a landowner might reasonably insist that, absent a genuine emergency, a utility company repair crew would not arrive and begin working at 3 in the morning.

As one might expect, easement rights can become quite contentious, and many easements result in litigation between the parties.

Easements can be created via several methods including the following:

• By agreement -- two property owners agree that one shall have an easement; these easements are generally called "express easements"
• From a common prior owner -- one landowner can, as a condition of selling a portion of the land, establish an easement for or against the parcel of land being sold; these types of easements are generally called "easements by reservation"
• By statute -- many utility easements are created by statute or local ordinance, a form of express easement
• By necessity -- in some cases, a local court can create an easement against the wishes of one landowner in favor of another when conditions require the easement; generally, these circumstances involve land-locked parcels of property where no access to the land is available without an easement
• By hostile and open use -- in some cases, a neighbor may be accessing and using another person's land without authorization and, if such access and use continues long enough and is open and "hostile," an easement can be created by the "hostile" neighbor and enforced by a court

In terms of legal requirements, to be effective and to be permanent, easements must be in writing and must be made "public." This usually means that the easement must be recorded in some manner with the local county office in charge of recording deeds and other instruments related to land. The easement might be listed specifically on a deed or be shown on a recorded plat of survey. As another example, if an easement is ordered or acknowledged in a court order, if the court order is recorded, then the easement becomes part of the public record. As a practical matter, easements can also be shown and listed in the title insurance policies that are provided when land is bought and sold.

If easements are not "made of public record," then, legally, such easements may only apply as between the existing landowners. Subsequent owners may be able to legally challenge the easements. Easements listed in a title insurance policy -- like a neighbor's fence that is over the property line -- are examples of easements that are not of public record. The current neighbors may be content to allow the easement, but subsequent owners might think differently.

For more information, and to schedule a confidential consultation with experienced and dedicated land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828 if you have a legal issue related to easements. We handle land use, zoning, and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.