Dec222025
Real Estate Q&A Series

How can I prevent a developer from getting an easement on my land without my permission? – North Carolina

Short Answer

In North Carolina, a developer usually cannot get a private driveway easement across private land without the owner’s consent unless the developer proves a specific legal basis for an involuntary easement (most commonly a “cartway”/private condemnation case for access, or an implied or prescriptive easement). The most practical way to prevent an easement from being created is to (1) stop any unauthorized use immediately and document it, and (2) respond quickly if the developer files a court proceeding seeking a right-of-way. If a lawsuit or special proceeding is filed, the best next step is to get counsel involved early so the request can be challenged before construction or long-term use creates leverage.

Understanding the Problem

In North Carolina, when a developer applies for a driveway easement across an owner’s undeveloped land without consent, the single decision point is whether a court or government process can force an easement even though the owner did not agree. The issue typically turns on whether the developer can point to a recognized method of creating an easement without a signed grant, such as a court-ordered access right-of-way, an easement implied from prior ownership and use, or an easement claimed from long-term use. The question focuses on preventing the developer from obtaining that legal right in the first place, not on negotiating a voluntary easement.

Apply the Law

Under North Carolina law, easements are most commonly created by a written, recorded agreement. An easement can also arise without consent in limited situations, including (1) a court process that establishes a private access way (often described as a “cartway” type proceeding), (2) an easement implied by law because of how land was previously owned and used, or (3) a prescriptive easement based on long-term, unauthorized use that meets strict requirements. The main forum for a forced private right-of-way is typically a special proceeding before the Clerk of Superior Court in the county where the land is located, with a right to appeal to Superior Court for a jury trial on key issues.

Key Requirements

  • No signed grant (baseline rule): If no owner signs an easement deed or written agreement, the developer must prove a recognized non-consensual easement theory in court; an “application” alone does not create an easement.
  • No long-term adverse use (to block prescriptive claims): Prescriptive easement theories generally depend on continuous, open, and hostile use over a long period; prompt objection and interruption of use can prevent the clock from running.
  • Challenge any attempted forced-right-of-way case (to block a court-ordered access easement): If a developer petitions for a cartway/private right-of-way, the affected landowners must be served and can oppose the right to relief, the proposed location, and damages in the special proceeding and on appeal.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the developer applied for a driveway easement across undeveloped land without the consent of the owner or neighbor. Because no owner signed a grant, the developer must rely on a non-consensual theory, and the best prevention strategy is to cut off any unauthorized entry and to be ready to oppose any court petition seeking a forced right-of-way. Since the land is intended for future access, documenting current access plans and objecting to a third-party driveway route can also help show that an imposed easement is not simply a harmless “paper right” but a real burden on planned use.

Process & Timing

  1. Who files: Typically the developer (or the party claiming the access right). Where: Clerk of Superior Court in the county where the affected land is located for a cartway-type special proceeding. What: A petition that describes the requested right-of-way and the land it would cross, plus service on the affected landowners. When: Service triggers the deadline to respond; the exact response deadlines depend on the type of case and filings, so quick action after service matters.
  2. Owner response: File an objection/response and present evidence against (a) the right to relief, (b) the proposed location, and (c) the claimed necessity. If the Clerk enters an adverse order, consider an appeal to Superior Court for a jury trial de novo on the statutory issues.
  3. Parallel protective steps: If the developer is entering the land or starting work, consider immediate steps to stop entry (written no-permission notice, posted signage, and if necessary a civil action for injunction/trespass), and preserve proof (photos, dated logs, survey/plat, communications).

Exceptions & Pitfalls

  • “Permission” can undercut prevention if handled loosely: Allowing use “just for now” without clear written limits can create confusion later; if temporary access is ever allowed, it should be documented as a revocable license (not an easement) with clear boundaries and an end date.
  • Not stopping use can invite a prescriptive claim: Long-term, open use without permission is a common building block for a prescriptive easement argument. The safest course is to stop unauthorized use early and consistently (including by revoking permission, posting, gating where lawful, and documenting interruptions).
  • Ignoring a special proceeding can lead to an order: A cartway/right-of-way petition is a court matter. If it is not contested, the developer may obtain an order setting a route and damages.
  • Recorded documents matter: If anything is recorded that purports to create an easement (even incorrectly), it can cloud title and interfere with future sale or development. A quiet-title-type action and/or a notice of litigation may be needed to clear the record in appropriate cases.
  • Government takings differ from private disputes: A private developer usually cannot use eminent domain unless it fits within a category granted that power by statute. Even when eminent domain is in play, it follows specific procedures and notice rules.

Conclusion

In North Carolina, a developer generally cannot obtain a private driveway easement over private land without consent unless the developer proves a narrow legal basis for an involuntary easement, often through a special proceeding before the Clerk of Superior Court. The most effective prevention is to stop unauthorized entry and use early, document objections, and respond quickly to any petition seeking a court-ordered right-of-way. The practical next step is to file a timely response opposing the requested easement in the Clerk of Superior Court after service of any petition.

Talk to a Real Estate Attorney

If a developer is trying to obtain a driveway easement across private land without consent, experienced attorneys can help identify what legal theory is being used, stop unauthorized entry, and respond to any special proceeding or lawsuit on time. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Real Estate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.