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How Easements Arise

Disputes over the existence and terms of easements are a frequent occurrence in Western North Carolina. Unlike more developed areas of the State where the majority of properties have frontage on a public road, properties in this area often are not located on a public road. In virtually all of these situations, the only means of access, if any, is over and across one or more neighbors’ properties.

Ideally, the right to cross a neighbor’s property in order to gain access to one’s own property will be contained in a written and recorded easement signed by the owner of the neighboring land subject to the easement. Many lay people believe that no easement can exist if there is no such written and recorded easement. They are incorrect. Easements can arise in a variety of ways other than by a written and recorded agreement. Specifically, easements arise in nine (9) or more different ways with an express, written grant of an easement being only one of the various ways in which an easement can come into existence.

An easement also can be contractually reserved across a piece of land when the land is sold or otherwise conveyed.

Easements also can arise by implication, by necessity, by adverse possession/prescription, by dedication, by estoppel, by condemnation and by statutory cartway proceeding. Each method has its own conditions that must be met in order for the easement to arise. Most importantly, unlike a written and recorded easement, an easement that arises by one of these other methods does not legally exist, so to say, until a court determines that the conditions for a particular method of creating an easement exist have been met, and the court recognizes the existence of the easement based upon the existence of the applicable conditions.

A detailed discussion of the various ways in which an easement can arise is way beyond the scope of this article. Yet, recognize that easements arise in a variety of ways. Moreover, the lack of a written and recorded grant or reservation of an easement does not mean that an easement does not exist. If the existence of an easement is in doubt, a lawyer should be consulted to determine if there are facts to support the creation or existence of an unrecorded easement.