Understanding the Problem
A co-owner may need to use an existing road to reach property even though a neighboring landowner disputes that access. The central question is whether the right to use the road is already established in the land records or must instead be proven from the properties’ history and the way the road has been used. The practical goal is to identify who owns the road area, whether an access right exists, where it runs, who may use it, and what uses it permits.
Apply the Law
Key Requirements
North Carolina recognizes easements, often called rights-of-way, created by written instruments, and it also recognizes certain non-written easements that may arise from the way land was divided or used over time. The review should address the following requirements:
- Identify the source of the claimed right: Determine whether the right-of-way comes from a recorded deed or easement agreement, a recorded plat reference, a court order, or a non-written theory such as necessity or long-term use.
- Confirm the location and scope: Determine the exact route, often by survey or plat, the width, and what uses are allowed, such as ingress and egress, utilities, maintenance, or general road purposes.
- Match the right to the correct parcels and owners: Confirm that the benefited land and the burdened land are correctly described and that the right runs with the land rather than being personal to a prior owner.
What the Statutes Say
- N.C. Gen. Stat. § 47-27 (Deeds of easements) requires deeds and agreements for rights-of-way and easements to be registered in the county where the affected land is located and provides that such an instrument is not valid against a creditor or purchaser for valuable consideration before registration, subject to the statute’s stated exceptions.
- N.C. Gen. Stat. § 39-6.4 (Creation of easements, restrictions, and conditions) provides that the holder of legal or equitable title may create, grant, reserve, or declare valid easements of record that burden or benefit the same interest in real property.
- N.C. Gen. Stat. § 1-40 (Twenty years adverse possession) addresses possession under known and visible lines and boundaries that is adverse to all other persons for 20 years and results in fee title. It does not itself state the requirements for establishing a prescriptive easement.
Analysis
Process & Timing
Here, a co-owner needs reliable access by an existing road, but a neighboring landowner disputes that access and the co-owner is out of state. If the right-of-way is already in the chain of title through deed language, a recorded easement agreement, or a plat reference, that may resolve whether an access right already exists without creating a new right. The recommended process is:
- Gather the records: The owner or co-owner, often through a North Carolina real estate attorney or title professional, should obtain records from the Register of Deeds in the county where the land is located. Review deeds for both parcels, recorded easement agreements, plats referenced in deeds, and recorded road maintenance or access agreements.
- Compare the records with the road: Compare the recorded plats and deed descriptions with the existing road. If the route or width is unclear, a licensed surveyor can locate the described easement corridor or determine whether the traveled road is outside it.
- Preserve evidence promptly: Collect dated photographs, correspondence, maintenance records, information about gates or locks, and witness accounts concerning the road’s historical use. Delays can make an access dispute harder to prove as records disappear and memories fade.
- Escalate only if needed: If the records do not clearly establish the right, the next step may be a formal demand letter or a civil action in the county where the land is located seeking a declaration of the parties’ rights and, when appropriate, an order stopping interference with access.
Exceptions & Pitfalls
- A road is not necessarily a legal easement: A visible road can exist without a recorded right-of-way, and use by permission can appear to be a legal right until a dispute arises.
- Plat and deed references may be missed: An easement may appear only because a deed incorporates a recorded plat by reference. The easement can be overlooked if the referenced plat is not obtained and reviewed.
- The corridor or width may be disputed: Even when an easement exists, the parties may disagree about whether the traveled path matches the legal description or whether widening or improving the road exceeds the easement’s scope.
- Non-written easements are fact-driven: Claims based on necessity, implication, or long-term use depend on details such as how the property was divided, whether use was permissive, and whether the use was continuous and open.
- Out-of-state ownership can create proof problems: When an owner cannot regularly observe the property, preserving dated photographs, communications, gate or lock changes, and witness statements becomes especially important.
For more context on access disputes involving long-term use, see prove a legal right to use an access path used for decades. For situations where there may be no written easement at all, see go to court to establish a right-of-way without a written easement.
Conclusion
In North Carolina, determining whether a legal right-of-way already exists usually begins with the county Register of Deeds. Review both properties’ deeds, recorded easement agreements, and incorporated plats to identify the route and scope of access. If those records do not establish an easement, the key threshold is whether the properties’ history and the road’s use support a non-written easement claim. The next step is to obtain the recorded documents, compare them with a survey, and preserve evidence of historical use.
Talk to a Real Estate Attorney
If a neighbor disputes your use of an existing road to reach property in North Carolina, call (919) 341-7055 to request a free case evaluation and discuss the recorded documents, the road’s history, and your options for resolving the access dispute.
