How do I prove we have a legal right to use an access path that our family has used for decades to reach the property? – North Carolina

Short Answer

In North Carolina, long-term use of an access path can support a legal right to keep using it, but the proof depends on why the right exists. The most common theories are a prescriptive easement (long, continuous, open use that was not merely “by permission”) or an easement by necessity (the property truly has no reasonable access except across a neighbor). The practical way to “prove” the right is to gather records and witness proof, then confirm the easement through a written agreement recorded with the Register of Deeds or, if needed, a Superior Court case to establish the easement.

Understanding the Problem

In North Carolina, a co-owner of family land may need to show that the property has a legal right to use a specific access path across a neighboring parcel. The decision point is whether the long-used route can be treated as a legally enforceable easement (rather than a neighbor’s revocable permission), especially when a sale or court-supervised partition is being considered and access is being challenged.

Apply the Law

North Carolina recognizes several ways an easement can exist. For a “decades-long path” dispute, the most common are (1) a prescriptive easement based on long-term use under a claim of right, and (2) an easement by necessity when a parcel is landlocked due to how it was originally divided. If the easement is already in writing, the focus shifts to proving it is valid and properly recorded in the county land records.

Key Requirements

Identify the legal theory: The proof for a prescriptive easement (long-term adverse use) is different from the proof for an easement by necessity (true lack of access tied to how the land was split).
Prove the route with specificity: The claimed access must be a particular, identifiable path (location, width, endpoints), not a vague “general area” of crossing.
Show the use was legally significant: For prescription, the evidence must show long, continuous, open use that was not simply neighborly permission; for necessity, the evidence must show the property lacks reasonable access without crossing the neighbor.

What the Statutes Say

N.C. Gen. Stat. § 47-27 (Recording deeds of easements) – Written easements and right-of-way agreements generally must be recorded to protect them against later purchasers and creditors.
N.C. Gen. Stat. § 41-10 (Quiet title / determine adverse claims) – Allows a Superior Court action to determine competing claims to interests in real property, which can be part of resolving an access-right dispute.
N.C. Gen. Stat. § 1-40 (Twenty years adverse possession) – Sets a 20-year adverse possession rule that often frames “20-year” property-right arguments; easement-by-prescription rules are largely developed through North Carolina case law and are commonly discussed using a similar long-use timeframe.

Analysis

Apply the Rule to the Facts: The property described requires crossing a neighboring parcel, and the neighbor is now disputing the long-used route. That fact pattern usually calls for building proof for (1) a prescriptive easement theory (showing the family’s use was long, consistent, and treated as a right rather than a favor) and/or (2) an easement by necessity theory (showing the parcel lacks reasonable access and the need traces back to how the land was divided). Because the land is co-owned and a sale is being considered, confirming access in a recordable form can be important before marketing the property or completing a partition sale.

Process & Timing

Who files: Typically the record owner(s) of the land that needs access (often all co-owners, or a representative acting with authority). Where: North Carolina Superior Court in the county where the land is located, and/or the county Register of Deeds for recording. What: (a) First, attempt a written easement agreement describing the route and width; (b) if no agreement, a civil action seeking a declaration/establishment of easement rights and related relief. When: As soon as the dispute threatens access, a sale, financing, or a partition case timeline.
Build the proof package: Collect surveys and aerials showing the route; photographs of the roadbed/gates; maintenance records (grading, gravel, culverts); and witness statements from people with first-hand knowledge across many years. A title review is also used to confirm whether any recorded easement already exists and whether the parcels’ history supports an implied/necessity theory.
Lock it into the land records: If the neighbor agrees, record the signed easement with the Register of Deeds so it shows up in future title searches. If the neighbor will not agree, the court route aims for an order that can be recorded and used to clear the access issue for future buyers.

Exceptions & Pitfalls

Permission can defeat prescription: If the neighbor (or a prior owner) can show the use was allowed as a favor, that can undercut a prescriptive easement claim. Evidence that the family acted “as of right” (not asking each time, not being supervised, maintaining the route) often becomes a key battleground.
Vague route descriptions: “We’ve always crossed over there” is usually not enough. A workable claim typically needs a defined route that can be mapped and described so it can be enforced and recorded.
Changing the path over time: If the route moved around, widened significantly, or switched to a different entrance, it can complicate proof. Consistency matters, and changes should be documented and tied to the same general corridor if possible.
Assuming necessity without proving it: An easement by necessity generally requires showing the property truly lacks reasonable access. If there is another legal access route (even if inconvenient), necessity may be harder to establish.
Not coordinating among co-owners: When land is co-owned, inconsistent statements or separate negotiations can weaken the position. A unified plan (including who has authority to sign) helps, especially when a partition action is also being considered. For background, see start a partition action and force the sale of inherited land when some co-owners refuse to sell.

Conclusion

To prove a legal right to keep using a decades-old access path in North Carolina, the first step is identifying the correct easement theory—most often a prescriptive easement (long, continuous, open use that was not merely permission) or an easement by necessity (no reasonable access except across the neighbor, tied to the parcel’s history). The most practical next step is to gather route-specific proof and pursue a written easement that can be recorded with the county Register of Deeds, or file a Superior Court action if the neighbor will not agree.

Talk to a Partition Action Attorney

If a family property sale is being delayed and access is also being disputed, coordinated planning can matter because the access issue can affect value, marketability, and timing. Our firm has experienced attorneys who can help evaluate easement options and how they fit with a partition strategy. 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.