How do easement laws work for a shared driveway? – North Carolina

Short Answer

In North Carolina, a shared driveway usually works through a written easement that is granted by the landowner and recorded with the county Register of Deeds. The easement defines who can use the driveway, for what purposes, and who must maintain it. A developer generally cannot place a driveway easement across someone’s land without the owner’s signature (or a court/condemnation process where allowed). Recording matters because an unrecorded easement may not be enforceable against later purchasers or certain creditors.

Understanding the Problem

In North Carolina real estate disputes, a common question is whether a developer can create or “apply for” a shared driveway easement across another owner’s land without consent, and what legal effect that has on future access to undeveloped property. The decision point is whether a valid easement exists that burdens the land and allows driveway access, or whether the attempted easement is ineffective and can be challenged through the county land records and, if needed, court action. The timing issue often turns on what has been signed, what has been recorded, and whether any driveway use has begun.

Apply the Law

Under North Carolina law, an easement is a property right that allows someone else to use a defined part of another person’s land for a specific purpose, such as ingress and egress over a driveway. For a shared driveway, the most common and least disputed route is an express easement created by the owner (or owners) of the burdened land in a written instrument and then recorded in the county where the land sits. Recording is a major protection step because North Carolina’s recording rules generally prevent an unrecorded easement from being enforced against later purchasers for value or certain creditors.

Key Requirements

Authority to grant the easement: The person granting the driveway easement must hold legal or equitable title to the property interest being burdened, and the easement must be created as a valid interest in land.
Clear written terms and location: A shared driveway easement should describe the benefited and burdened parcels, the permitted uses (driveway access, utilities if any), and the easement area (often by survey, plat reference, or metes-and-bounds description).
Recording in the correct county: The easement instrument should be recorded with the Register of Deeds in the county where the affected land is located so it shows up in the chain of title and binds later owners.

What the Statutes Say

N.C. Gen. Stat. § 39-6.4 (Creation of easements) – Allows the title holder to create, grant, reserve, or declare easements of record burdening or benefiting real property.
N.C. Gen. Stat. § 47-27 (Recording deeds of easements) – Requires easement instruments to be recorded in the county where the land is located and explains how recording affects enforceability against purchasers and creditors.

Analysis

Apply the Rule to the Facts: The facts describe a developer applying for a driveway easement across two owners’ properties without consent and without discussing it with either owner. Under the core requirements above, a driveway easement typically needs authority from the title holder and a valid written instrument; without the owners’ signatures (or a court/condemnation mechanism that applies), the attempted easement is usually not a valid grant. Because the land is undeveloped and intended for future access, the exact easement location and scope matter, and the county land records become the first place to confirm whether anything was recorded that clouds title.

Process & Timing

Who files: Typically the party claiming the easement (or the landowner responding to it). Where: The Register of Deeds in the county where the property is located in North Carolina. What: The recorded easement instrument (and any referenced plat/survey) and the deeds in the chain of title. When: As soon as a questionable easement appears in the land records or a developer starts acting as if driveway rights exist.
Confirm what exists in the public record: Pull the recorded documents for both parcels to see whether an easement was actually recorded, who signed it, and whether the legal descriptions match the correct land. If a document was recorded without proper authority, the next steps often involve a title review and a written demand to correct the record.
Resolve the dispute: If the developer will not correct the issue voluntarily, the typical endpoint is a recorded corrective instrument (if everyone agrees) or a court order that clarifies whether an easement exists and what it covers.

Exceptions & Pitfalls

“Easement by necessity” and similar implied theories: Some access rights can arise from how land was divided and whether a parcel became landlocked, but those claims are fact-specific and often require court involvement to confirm scope and location.
Bad descriptions and missing maintenance terms: Shared driveway disputes often come from vague easement language, no survey reference, or no clear rules for repairs, drainage, snow/ice, gates, or who pays for improvements.
Recording and title problems: A recorded document can still be challenged if it was not properly authorized, but leaving a questionable instrument unaddressed can complicate financing, future development plans, and later sales.
Confusing a “permit” with a property right: A driveway permit or development approval (when applicable) is not the same thing as a private easement across someone else’s land.

Conclusion

In North Carolina, a shared driveway usually depends on a valid easement created by the property owner and recorded with the county Register of Deeds. A developer generally cannot create a driveway easement across undeveloped land without the owner’s consent or a lawful court-based process. Recording is a key threshold issue because an unrecorded easement may not bind later purchasers for value. The most important next step is to obtain and review the recorded land records and easement documents from the Register of Deeds promptly.

Talk to a Real Estate Attorney

If you’re dealing with a disputed shared driveway easement or a recorded document that appears to affect access across undeveloped land, our firm has experienced attorneys who can help explain the options and timelines under North Carolina law. 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.