How Easements Are Created and Removed in North Carolina

You think you fully own your property. Then you find out someone else has the legal right to use part of it — and in some cases, you may have given them that right without even realizing it.

Easements are one of the most misunderstood aspects of property ownership, and they can affect everything from your ability to build to the value of your home. In the video below, Tiffany Webber breaks down exactly how easements are created in North Carolina, the four different ways they can end up on your property, and — the part most people really want to know — how to get rid of one.

Watch the Full Video

Keep reading for the full breakdown, or watch the full video for Tiffany’s complete explanation with real-world examples.

Quick Terminology: Who’s Who in an Easement

Before getting into how easements are created and removed, it helps to know two terms that come up constantly.

The dominant tenement (or benefited parcel) is the property that benefits from the easement. The servient tenement (or burdened parcel) is the property the easement crosses. This distinction matters because only the owners of the benefited parcel can voluntarily give up an easement. The burdened property owner can’t unilaterally terminate it — which frustrates a lot of people, but that’s how the law works.

Four Ways Easements Are Created

1. Express Easement

This is the most straightforward type. It’s created by a written agreement — usually in a deed or a separate recorded document. The agreement gets recorded at the register of deeds, and the easement is official. This is what comes up most often in closings.

A common example: your neighbor needs to cross your property to reach the main road. You sign an easement agreement, it gets recorded, and they (or their future successors) have that legal right until the easement is terminated.

2. Implied Easement

These aren’t created by a written document — they’re created by the circumstances. North Carolina courts may find an implied easement when there’s been an apparent and continuous use of the property that’s reasonably necessary.

Tiffany sees this most often with family land. Say a father owns 10 acres and builds a driveway across it, then splits the property between his two kids. Even if neither deed mentions the driveway, the child whose land the driveway crosses probably can’t just block it. A court could find an implied easement because the access was obviously necessary when the land was divided.

3. Easement by Necessity

This is similar to an implied easement but specifically applies when property that was once commonly owned gets divided in a way that makes an easement necessary for the land to be usable. The most common scenario is landlocked property — if splitting the land would leave one parcel with no way to reach a road, an easement by necessity exists over the other parcel.

4. Prescriptive Easement

This is the one that catches property owners completely off guard. In North Carolina, if someone uses your property openly, continuously, and without your permission for 20 years, they can gain a legal easement right to that use.

The use has to be hostile — and that doesn’t mean aggressive. It means without permission. This is an important distinction: if you give your neighbor permission to use your driveway, the clock for a prescriptive easement never starts running. Permission defeats the claim.

To make a prescriptive easement official, the person claiming it has to file a quiet title action in court. It doesn’t happen automatically.

Seven Ways Easements Can Be Terminated

1. Release by the Easement Holder

The simplest method. The owners of the benefited parcel sign a document releasing their rights, it gets recorded at the register of deeds, and the easement is gone. The key: you can’t force someone to release an easement. They have to agree to it. And only the benefited party can do it — the burdened property owner has no unilateral right to terminate.

2. Expiration

Some easements are created with a built-in time limit or condition. Tiffany has seen easements that say “for as long as the property is used for agricultural purposes” or “for a period of 10 years.” When the time runs out or the condition changes, the easement terminates automatically.

3. Abandonment

This one is tricky in North Carolina. Simply not using an easement is not enough to qualify as abandonment. The easement holder has to show clear intent to abandon it. North Carolina courts require clear and convincing evidence of that intent — there needs to be some affirmative act showing they’re giving up the right, not just a period of non-use. Tiffany has seen easements that went unused for 20 years still hold up because there was no demonstrated intent to abandon.

4. Merger

If one person ends up owning both properties — the burdened and the benefited — the easement merges into full ownership and disappears. You can’t have an easement over your own property because you don’t need one. This comes up when people buy neighboring parcels.

5. End of Necessity

If an easement was created by necessity and that necessity no longer exists — say a new road was built that gives the landlocked property direct access — the easement may be extinguished. But this needs to be handled carefully. Blocking an easement without proper legal basis can lead to lawsuits.

6. Eminent Domain

If the government takes property through eminent domain, some easements affecting that property may be extinguished as part of the taking.

7. Foreclosure

Certain foreclosure situations can eliminate easements, though this gets complicated and depends on when the easement was created relative to when the mortgage was recorded. The timing and priority of the documents matters.

What Every Property Owner Should Know

Tiffany leaves every client with three pieces of advice when it comes to easements.

Always get a title search when buying property. A title search will reveal recorded easements, but it won’t uncover prescriptive easements, implied easements that haven’t been litigated, or informal verbal arrangements between neighbors. Knowing the limitations of a title search is just as important as getting one.

Put everything in writing. If you’re giving someone permission to use your property, get a lawyer involved and make it clear whether you’re granting revocable permission or an actual easement. Informal arrangements between neighbors are one of the most common sources of easement disputes. What starts as a friendly handshake can turn into a legal nightmare.

Don’t assume an unwanted easement will go away on its own. If you have an easement on your property that you want removed, you need to be proactive — whether that means negotiating a release, building a case for abandonment, or determining if the original necessity still exists. Sitting and hoping isn’t a strategy.

Watch the full video for Tiffany’s complete breakdown of each creation and termination method, including the family land example and why giving someone permission to use your property actually protects you from a prescriptive easement claim.

Dealing With an Easement Issue? Let Us Help.

At Thomas & Webber, easements come up in our closings and title work constantly. Whether you’re buying property and want to understand what’s on it, dealing with a neighbor dispute, or trying to figure out how to get an easement removed, we can walk you through your options.

Our offices in Mooresville, Huntersville, and Denver serve property owners throughout the Lake Norman area, including Davidson, Cornelius, Sherrills Ford, Troutman, and Statesville.

Email us at [email protected] or call us: (704) 663-1600