Can a developer force an easement on undeveloped land over the owner’s objection? – North Carolina

Short Answer

Usually not. In North Carolina, a private developer generally cannot record or “force” a driveway easement across someone else’s land without the owner’s consent. An easement can sometimes be imposed without consent only through narrow legal routes—most commonly a court-recognized access easement (such as an easement by necessity or by prior use) or a condemnation case if the party has eminent-domain authority—which does not apply to most developers.

Understanding the Problem

In North Carolina, can a developer obtain a driveway easement across an owner’s undeveloped land when the owner objects, where the developer did not negotiate with the owner and the land is being kept for future access? The decision point is whether any legal mechanism exists to create an easement without the owner signing a recorded easement agreement. This question usually comes up when a proposed driveway or access route would cross multiple parcels and at least one owner refuses to grant access.

Apply the Law

Under North Carolina law, an easement is a right to use another person’s land for a limited purpose (such as ingress and egress for a driveway). The normal way to create a driveway easement is by a written grant signed by the landowner and recorded in the county Register of Deeds. Without a signed grant, a developer typically must prove a recognized “nonconsensual” easement theory in court, or show legal authority to condemn property (eminent domain). Disputes about whether an easement exists or can be imposed are usually decided in North Carolina state court, and condemnation cases follow specific statutory procedures when condemnation authority exists.

Key Requirements

Consent or a recognized nonconsensual easement theory: A developer must have a signed easement deed, or must prove a court-recognized basis for an easement (for example, a true necessity tied to prior common ownership, or long-term adverse use that meets prescriptive requirements).
Proper location and scope: Even when an easement can be recognized, its location and use must stay within what the law allows (for example, limited to access, not a broader development benefit), and it cannot exceed the necessity or historic use that created it.
Correct forum and procedure: If the theory depends on court recognition (necessity/prior use/prescription), the party seeking the easement must file the right civil action and prove the required elements. If the theory is condemnation, the condemnor must actually have eminent-domain authority and must follow Chapter 40A procedures.

What the Statutes Say

N.C. Gen. Stat. § 40A-19 (Proceedings by private condemnors) – Allows private entities that already have eminent-domain power under North Carolina law to acquire property through the special condemnation proceeding, but only if they are among the entities granted that power.

Analysis

Apply the Rule to the Facts: The facts describe a developer applying for a driveway easement across two properties without consent and without prior discussions. That is not enough, by itself, to create an easement in North Carolina; a landowner’s signature (or a court order recognizing an easement under a narrow doctrine) is typically required. Because the land is undeveloped and intended for future access, a court will usually focus on whether any legal “necessity” exists for the developer’s parcel and whether the situation traces back to prior common ownership or qualifying long-term use—issues not shown by the facts as stated.

Process & Timing

Who files: The party claiming access rights (often the developer or the benefitted landowner). Where: North Carolina state court in the county where the land sits (typically Superior Court), with recording issues handled at the county Register of Deeds. What: A civil complaint seeking a declaration of easement rights and, if needed, injunctive relief; or a condemnation special proceeding only if the filer has statutory condemnation authority. When: Timing depends on the theory; prescriptive easement claims depend on long, uninterrupted use over many years, and condemnation timelines are driven by statute and court scheduling.
Next step: The defendant landowners typically respond and may challenge the legal theory (for example, no common ownership for an easement by necessity, no qualifying long-term adverse use for prescription, or no authority to condemn). The court may require surveys, title history, and witness evidence about historic use and access.
Final step: If the claimant meets the legal requirements, the court enters an order recognizing (and often defining) the easement’s location and scope, and the order or an easement instrument is then recorded in the Register of Deeds. If the claimant cannot meet the requirements, the request for a forced easement is denied.

Exceptions & Pitfalls

Easement by necessity or prior use: A developer may argue an easement exists because a parcel became landlocked after a division from a larger tract. These claims often turn on old deeds and whether the parcels once had common ownership; many disputes fail because the title history does not support the required relationship.
Prescriptive easement claims: An easement can be claimed after long-term use that is continuous and under a claim of right rather than permission. A common pitfall is that use was permissive (or too occasional), which usually defeats prescription.
“Application” versus legal right: Filing for development approvals or submitting a proposed easement document does not create an easement. Recording a document that was not properly granted can create a cloud on title and trigger a court action to clear title.
Condemnation misunderstandings: Most private developers do not have eminent-domain power. Even when a private entity does, condemnation requires strict compliance with Chapter 40A procedures and payment of compensation; it is not a shortcut to avoid negotiation.
Scope creep: Even if some access right exists, expanding it into a broader construction or subdivision roadway can exceed the easement’s lawful scope and lead to injunction risk.

Conclusion

In North Carolina, a developer generally cannot force a driveway easement across undeveloped land over an owner’s objection without a valid legal basis beyond a mere request or plan submission. Nonconsensual easements usually require proof of a narrow doctrine such as necessity tied to prior common ownership or long-term adverse use, or a condemnation case only if the party has eminent-domain authority under state law. The practical next step is to file a title-and-survey based evaluation and, if needed, a civil action in the county where the property is located to confirm that no easement exists.

Talk to a Real Estate Attorney

If a developer is claiming a right to cross undeveloped land for a driveway or access route, an attorney can review the title history, plats, and any recorded documents to identify whether any easement could exist and what steps can stop improper recording or use. 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.