A right of way is a type of easement that allows someone to cross over another’s property in order to gain access to his or her own property. Many modern deeds include a written right of way, which ensures that the Seller and any subsequent owners of that property have access over the adjacent parcel.
Anytime we handle a closing, we search in the chain of title for a right of way. We usually find one, but sometimes parcels have been passed down in a family or sold without an express right of way. Land without right of way access to a public road is referred to as “landlocked,” and it is possible in North Carolina for a parcel to stay landlocked if a neighbor won’t convey right of way.
There is not always a legal remedy for this, but state law does provide relief for some landowners. In North Carolina, there are three ways to obtain right of way through legal action: (1) initiating a cartway proceeding, (2) claiming a prescriptive easement (like adverse possession), and (3) claiming an easement by implication, where necessity can be shown. Each of these procedures is statutory in nature and the owner seeking to establish an easement or right of way has a high burden of proving that the statutory requirements have been met.
Initiating a Cartway Proceeding: This is a proceeding before the Clerk that allows a landowner to obtain right of way to a landlocked parcel in specific situations. To be entitled to a cartway, a landowner must prove three things:
- Landowner is engaged in (or is taking action preparatory to engaging in) cultivation of land; cutting and removing standing timber; working on quarries, mines, or minerals; operating an industrial or manufacturing plant; or operating a public or private cemetery; (there are cases holding that no cartway shall be granted in favor of a parcel of land devoted exclusively for residential use); and
- There is no public road or other adequate means of transportation providing ingress or egress; and
- It is necessary, reasonable, and just that the landowner have a private way over the land of another person to a public road.
If a cartway is granted, then the landowner seeking the cartway must pay the adjoining landowner. The cost of the cartway is calculated as the change in fair market value to the adjoining property due to the cartway.
Claiming a Prescriptive Easement: If the landowner used his neighbor’s land for many years, without permission, and the neighbor never brought a trespass claim against him, then the landowner may be able to claim a prescriptive easement. This is like gaining title through adverse possession. The party asserting an easement by prescription must prove use of an easement across another’s land by the owner or a predecessor in interest that was:
- Adverse, hostile, or under a claim of right (If the neighbor allowed the landowner to use the right of way, then there’s no prescriptive easement);
- Open and notorious;
- Continuous and uninterrupted for 20 years;
- The same basic area of land was used as an easement for the entire 20 years.
Easement by Implication: When a landowner sells part of a tract of land and, by his division, he deprives one lot of access to a public road, then a right-of-way by necessity is created. Determining whether this kind of easement can be created takes some digging in the public record and often a survey.
The best way to obtain right of way is always to work with your neighbors and come to an agreement. Sometimes, skilled counsel can help negotiate a right of way with your neighbors. But, where this is not possible, attorneys with experience in real estate litigation can help you determine your rights and, where necessary, bring an action to help you obtain right of way.