Can I go to court to establish a right-of-way if there is no written easement in the deed? – North Carolina

Short Answer

Yes. In North Carolina, a court can recognize a right-of-way even when no written easement appears in the deed, but the right has to fit a recognized legal theory and be proven with facts. Common routes include a prescriptive easement (long, adverse use), an implied easement (based on how the land was historically used when it was split), or a statutory “cartway” special proceeding for land that lacks adequate access. Which option applies depends on the history of the road, permission issues, and whether the property has other adequate access.

Understanding the Problem

In North Carolina real estate disputes, the core question is whether a landowner can ask a court to declare a legal right to use an existing road across a neighbor’s land when the deed does not contain a written easement. The decision point is whether the access can be established through a recognized type of easement or a statutory right-of-way process, based on the property’s access situation and the history of use. The forum is typically the county Superior Court system, often starting with the Clerk of Superior Court for certain special proceedings.

Apply the Law

North Carolina recognizes several ways to establish a right-of-way without a written easement in the deed. The most common are (1) proving a prescriptive easement based on long-term use that was not by permission, (2) proving an implied easement (including an easement by necessity) tied to how a larger tract was divided and whether access is reasonably necessary, or (3) using a statutory “cartway” special proceeding when there is no public road or other adequate means of access for certain land uses. These cases often turn on practical proof: how long the road has been used, whether the neighbor allowed it (permission defeats “adverse” use), whether the road served the property before the land was split, and whether there is any other adequate access.

Key Requirements

Identify the legal basis: The claim must fit a recognized category (prescriptive easement, implied easement/necessity, or statutory cartway). Courts do not create a right-of-way just because access would be convenient.
Prove the access history with evidence: These cases usually require deeds and plats, survey work, photos, witness testimony, and a clear description of the route (location and width). Vague “we’ve always used it” claims often fail without details.
Show the access problem is real (and not self-created): For necessity/cartway-type relief, the property typically must lack a public road connection or other adequate access. If there is another reasonable way in, the court may deny the request.

What the Statutes Say

N.C. Gen. Stat. § 136-69 (Cartways; procedure) – Allows a special proceeding to lay out a private way to a public road or watercourse in limited situations when there is no public road or other adequate means of transportation, with a jury of view and damages paid before rights attach.
N.C. Gen. Stat. § 47-27 (Recording deeds of easements) – Requires deeds or agreements for easements/right-of-way to be recorded to be valid against creditors and purchasers for value, which is why missing recorded easements often lead to disputes.
N.C. Gen. Stat. § 1-40 (Twenty years adverse possession) – Sets a 20-year adverse possession period; North Carolina prescriptive easement claims commonly track a similar long-term, adverse use concept even though easements are different from owning the land.

Analysis

Apply the Rule to the Facts: The facts describe co-owners who rely on an existing road and have an ongoing access conflict with a neighbor, with no written easement in the deed. That pattern often points to (1) a prescriptive easement theory if the road has been used openly for a long period without permission, or (2) an implied easement/necessity theory if the road served the property when it was part of a larger tract and access is reasonably necessary. If the property lacks any other adequate access to a public road for qualifying land uses, a cartway special proceeding may be another route, but it is not automatic and can involve a set process and payment of assessed damages.

Process & Timing

Who files: The property owner(s) seeking access (often all co-owners together). Where: Typically the Clerk of Superior Court in the county where the burdened land/road is located (for cartway and other special proceedings) or Superior Court (for civil actions seeking a declaratory judgment/injunction). What: A verified petition/complaint describing the claimed right-of-way, the route, and the legal basis; supporting exhibits often include deeds, plats, and a survey or map. When: Timing depends on the claim; for prescriptive-type claims, the history of use (often measured in decades) matters more than a short filing deadline, but waiting can increase the risk of blocked access, changed conditions, or weaker proof.
Notice and evidence gathering: The neighbor must be properly served. The case usually turns on proof such as witness statements about use and permission, maintenance history, gates/locks, and whether the route is definite and consistent over time. If the owner is out of state, local witnesses and records (including prior owners) often become important.
Decision and recording: If the court recognizes an easement or establishes a cartway, the order typically needs a clear legal description. The next practical step is recording the order (and any survey/description) in the Register of Deeds so the right-of-way is documented in the land records going forward.

Exceptions & Pitfalls

Permission defeats “adverse” use: If the neighbor (or a prior owner) gave permission to use the road, that can undermine a prescriptive easement claim unless the use later clearly became hostile/adverse and stayed that way for the required period.
Unclear route or changing path: Courts generally require a definite, identifiable route. If the road location has shifted over time or the claimed width is not supported, the claim can weaken.
“Adequate access” arguments: For necessity/cartway-type relief, the neighbor may argue there is another reasonable way in (even if less convenient or more expensive). That issue often becomes the central fight.
Co-owner coordination: When property is co-owned, inconsistent positions or lack of cooperation can complicate settlement and litigation strategy, especially when one owner is out of state.
Recording gaps: Even when an easement exists by agreement, failure to record can create priority problems against later purchasers. Cleaning up the record often matters as much as winning the dispute.

Related reading can help frame proof issues in long-running access disputes, including prove a legal right to use an access path used for decades and handle an access dispute when living out of state.

Conclusion

North Carolina courts can establish or recognize a right-of-way even when no written easement appears in the deed, but the claim must fit a recognized path such as a prescriptive easement, an implied easement/necessity theory, or a statutory cartway proceeding. The key threshold is proving the required access history or necessity, and the most important practical step is filing the correct petition/complaint in the county where the road lies and supporting it with a clear route description (often a survey) and strong evidence of use.

Talk to a Real Estate Attorney

If there is an access-road dispute and no written easement in the deed, our firm has experienced attorneys who can help evaluate whether North Carolina law supports a prescriptive easement, implied easement, or cartway proceeding and what proof is needed. 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.