How do I prove and record my driveway easement if there’s no written agreement? – North Carolina

Short Answer

In North Carolina, if you don’t have a written easement, you can ask the Superior Court to declare and define one (by prescription, implication, or necessity) and to order your neighbor not to block it. While the case is pending, file a notice of lis pendens so buyers and lenders are on notice, and after judgment, record the court’s order (and any survey) with the Register of Deeds in every county where the driveway lies.

Understanding the Problem

You want to know how, under North Carolina real estate law, you can prove and then record a driveway easement when no written document exists. The immediate concern is that your neighbor plans to block the shared driveway. One important detail here: your property and the driveway cross a county line, which affects where you file and where you record.

Apply the Law

North Carolina recognizes easements that arise without a deed, including prescriptive easements (long, continuous, adverse use), implied easements from prior common ownership and use, and easements by necessity. To make those rights enforceable and recordable, you typically file a civil action in Superior Court asking for a declaratory judgment that defines the easement’s existence, location, and scope, and you can request an injunction to stop any blockage. A notice of lis pendens gives public notice while the case is pending, and a certified judgment can then be recorded in the Register of Deeds.

Key Requirements

• Legal basis for the easement: Show facts supporting a prescriptive easement (open, continuous, adverse use for a long period), an implied easement (prior common ownership and apparent, continuous use at severance), or a necessity easement (strict necessity at severance).
• Definite location: The route must be reasonably definite; a survey or clear description helps the court and the Register of Deeds.
• Proper forum and relief: File a civil action in Superior Court for declaratory judgment and request temporary and/or preliminary injunctive relief to prevent obstruction.
• Public notice during the case: File a lis pendens so third parties are on notice, especially important when property spans more than one county.
• Recording the result: After judgment, record the certified order (and any survey legal description) with the Register of Deeds in each county where the driveway lies.

What the Statutes Say

• North Carolina Gen. Stat. § 1-253 (Declaratory judgments) – Lets the court declare rights, status, and legal relations, including property rights.
• North Carolina Gen. Stat. § 1A-1, Rule 65 (Injunctions) – Provides for temporary restraining orders and preliminary injunctions to prevent blockage while the case proceeds.
• North Carolina Gen. Stat. § 1-116 (Lis pendens) – Allows filing a notice in actions affecting title or any interest in real property; gives notice to third parties.
• North Carolina Gen. Stat. § 47-18 (Recording to protect against purchasers) – Recording in the Register of Deeds is needed to protect interests against purchasers for value.

Analysis

Apply the Rule to the Facts: With no written grant, you would build your case for a prescriptive, implied, or necessity easement, then ask the Superior Court to declare and define it and to enjoin the neighbor from blocking the driveway. Because your driveway crosses a county line, you should file a lis pendens and later record the final judgment in the Registers of Deeds for both counties. A survey will help the court fix a precise location for recording.

Process & Timing

1. Who files: Property owner. Where: Superior Court in a North Carolina county where any part of the driveway/property lies. What: Complaint for declaratory judgment to establish and define the easement, plus a motion for temporary restraining order and preliminary injunction; file a notice of lis pendens. When: If blockage is imminent, file immediately and request emergency relief the same day.
2. Serve the neighbor and any other interested owners. The court can hear a temporary restraining order on short notice and schedule a preliminary injunction hearing soon after. Expect discovery, potential mediation, and, if needed, a survey to fix the easement’s metes and bounds.
3. After a final judgment declaring the easement and describing its location, obtain a certified copy and record it (and any survey) with the Register of Deeds in each county the driveway crosses. This makes the easement of record for future buyers and lenders.

Exceptions & Pitfalls

• Permission defeats adversity: If your use was by your neighbor’s permission, it does not count toward a prescriptive easement.
• Vague route: A shifting or ill-defined path can derail both the court’s order and later recording. Use a survey to lock down the route.
• No unity of title: You cannot claim an implied or necessity easement without prior common ownership at the time the properties were split.
• Cross-county trap: Failing to file a lis pendens and record the final judgment in each county leaves gaps in notice.
• Self-help risk: Moving obstructions yourself can escalate disputes; seek injunctive relief instead.
• If no legal access exists: If you truly lack access and cannot establish an easement, a separate “private road” cartway proceeding may be available, but it follows different rules and is handled through the Clerk of Superior Court.

Talk to a Real Estate Attorney

If you’re dealing with a blocked shared driveway and no written easement, our firm has experienced attorneys who can help you understand your options and timelines. 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.