How can we get a legal right-of-way for a landlocked parcel so it can be sold or refinanced later? NC

Understanding the Problem

Co-owners of a landlocked parcel often need to turn a long-standing, informal driveway arrangement into a legally enforceable right-of-way before selling or refinancing. Buyers and lenders generally want access rights that can be found in the public record and tied to a definite route. Here, the parcel has been accessed for decades using a neighbor’s driveway, but there is no clear recorded right-of-way and the larger tract has not been surveyed.

Apply the Law

North Carolina recognizes several potential paths to enforceable access. The most straightforward is a negotiated easement signed by the necessary property owners and recorded with the Register of Deeds. If an agreement is not possible, the owners may consider a statutory cartway, but only if the property’s use falls within the categories specified by the cartway statute and the remaining statutory conditions are met.

Key Requirements

Clear, recordable description: The right-of-way should identify the benefited and burdened land and describe the route clearly enough to locate it on the ground, commonly through a survey or plat and written legal description.
Necessary parties: A title review should determine who must sign a negotiated easement or receive notice and participate in a cartway proceeding.
Recognized basis for access: The owners need a signed easement, a qualifying statutory cartway, or another legally enforceable basis for using the neighboring land.
Qualifying cartway use: A cartway is available only for cultivation, timber removal, quarrying, mining or mineral work, operation of an industrial or manufacturing plant, operation of a public or private cemetery, or action preparatory to one of those activities.

What the Statutes Say

N.C. Gen. Stat. § 136-68 provides for a special proceeding before the Clerk of Superior Court to establish, alter, or discontinue a cartway or similar easement. The petition must be served on people whose property will be affected, and an interested party may appeal a final order to Superior Court for a jury trial de novo.
N.C. Gen. Stat. § 136-69 identifies the qualifying land uses and requires that no public road or other adequate means of transportation lead to the property, expressly excluding a navigable waterway from the adequate transportation that would defeat eligibility. If the proposed way is necessary, reasonable, and just, a three-person jury of view lays out a route between 18 and 30 feet wide and assesses damages. The petitioner acquires no rights until the assessed damages and proceeding costs are paid into the clerk’s office.
N.C. Gen. Stat. § 39-6.4 permits the holder of legal or equitable title to create, grant, reserve, or declare valid easements of record burdening or benefiting the same interest in real property.
N.C. Gen. Stat. § 47-27 addresses recording deeds and agreements for rights-of-way and easements in the county where the affected land is located and provides that an unrecorded easement is not valid against a creditor or purchaser for value.

Analysis

The parcel’s decades-long use of the neighbor’s driveway does not, by itself, provide the clear recorded access a future buyer or lender may require. The owners should first investigate the title and survey the property and proposed route. They can then seek a negotiated easement addressing access, location, maintenance, gates, utilities, and permitted users. If the neighbor refuses, the owners must determine whether the parcel’s actual or planned use falls within the limited categories covered by the cartway statute.

Process & Timing

Review title and obtain a survey: Confirm the boundaries, ownership interests, existing recorded easements, and a practical route to a public road.
Pursue a negotiated easement: Prepare a written agreement with a definite description, obtain the required signatures, and record it with the Register of Deeds. The document should address the driveway’s scope, maintenance, utilities, gates, and upkeep costs.
Evaluate cartway eligibility: Confirm that the land is being used, or that preparations are being made to use it, for an activity listed in N.C. Gen. Stat. § 136-69 and that no public road or other adequate means of transportation leads to it. Access only by a navigable waterway does not defeat eligibility under the statute.
File the special proceeding: A cartway petition is filed before the Clerk of Superior Court in the proper county and served on the affected property owners. The process may include a jury of view, exceptions heard by the clerk, assessment of damages, and an appeal to Superior Court for a jury trial de novo.
Pay damages and costs: A successful petitioner acquires no cartway rights until the assessed damages and proceeding costs have been paid into the clerk’s office. The access therefore may not be ready for a closing until payment and the remaining record work are complete.

Exceptions & Pitfalls

Landlocked status is not enough for a cartway: The property must satisfy the statute’s qualifying-use requirement and must lack a public road or other adequate means of transportation, although access only by a navigable waterway does not disqualify it.
Decades of use may not produce a recordable right: The history of the driveway must be investigated rather than assumed to establish an easement.
Unclear ownership can delay the solution: Co-ownership, uncertain boundaries, and missing signatures can prevent completion of an easement or court proceeding.
A vague route can create future disputes: The agreement should clearly define the right-of-way’s location, width, permitted uses, maintenance obligations, and any utility rights.
Cartway compensation is mandatory: The neighboring owner is entitled to assessed damages, and rights do not arise until damages and costs are paid into the clerk’s office.

Conclusion

A North Carolina landlocked parcel should have a recorded, enforceable access right before a sale or refinance. The preferred next step is a title review and survey followed by a negotiated easement recorded with the Register of Deeds. If the neighbor refuses, a cartway may be available only when the parcel meets a use listed in N.C. Gen. Stat. § 136-69 and lacks a public road or other adequate transportation, excluding a navigable waterway. Counsel should evaluate that threshold before filing with the Clerk of Superior Court.

Talk to a Partition Action Attorney

If a family-owned tract is landlocked and needs a recorded right-of-way for a future sale or refinance, contact our firm for a free case evaluation concerning easement options, title and survey issues, or a qualifying cartway proceeding at 919-341-7055.