What rights do I have if someone applies for a driveway easement across my and my neighbor’s property? – North Carolina

Short Answer

In North Carolina, a developer generally cannot place a private driveway easement across someone else’s land without a signed written easement (or a court order in a limited type of “private way” case). If a developer files paperwork to try to create access across multiple properties, the owners typically have the right to receive notice, to object, and to be heard—often in a special proceeding before the Clerk of Superior Court. Property owners can also challenge improper recording attempts and insist that any access right be properly located, limited in scope, and compensated if a court awards it.

Understanding the Problem

In North Carolina real estate disputes, the question is what rights a landowner has when a developer tries to obtain a driveway easement across two separately owned parcels (the client’s parcel and a neighbor’s parcel) without the owners’ consent. The decision point is whether the developer is trying to create an easement by voluntary agreement and recording, or is asking a court (usually the Clerk of Superior Court) to impose a private right-of-way across the land. Timing often turns on when papers are served, when objections must be filed, and whether any document gets recorded in the county’s land records.

Apply the Law

Under North Carolina law, an easement is a limited right to use someone else’s land for a specific purpose (like a driveway). Most driveway easements are created by a written, signed instrument that is recorded in the county Register of Deeds. When a party claims they need access and cannot obtain it by agreement, North Carolina also has a statutory “cartway” procedure (a type of court-ordered private way) that is handled as a special proceeding before the Clerk of Superior Court, with notice to the affected landowners, an opportunity to object, and damages assessed if the court allows the right-of-way.

Key Requirements

Valid creation method: A driveway easement usually must come from a written, signed easement agreement that the owners grant and that can be recorded (or a court order creating a limited private way in a proper proceeding).
Notice and a chance to be heard: If someone seeks a court-ordered private way (cartway), the affected owners must be served with the petition and can participate, file exceptions, and appeal.
Defined location and limited scope: Any recognized right-of-way should have a specific location and width and should be limited to what is necessary for access, not a blanket right to use the entire property.

What the Statutes Say

N.C. Gen. Stat. § 136-68 (Cartway special proceeding) – Requires a special proceeding before the Clerk of Superior Court, service on affected landowners, and allows appeal to Superior Court for a jury trial de novo.
N.C. Gen. Stat. § 136-69 (Cartway procedure and damages) – Sets the basic standards for when a private way may be laid out, provides for a jury of view, and requires payment of assessed damages and costs before rights are acquired.
N.C. Gen. Stat. § 47-27 (Recording deeds of easements) – Requires recording of easement instruments in the county Register of Deeds and explains limits on enforceability against others if not recorded.

Analysis

Apply the Rule to the Facts: The facts describe a developer applying for a driveway easement across two owners’ undeveloped properties without discussing it or obtaining consent. Without a signed, recordable easement from each affected owner, the developer does not typically have a voluntary easement. If the developer is instead pursuing a court-ordered private way, North Carolina law generally requires a special proceeding with service on the affected owners, a defined location and width determined through the process, and an assessment of damages that must be paid before any rights vest.

Process & Timing

Who files: The party seeking access (often the developer or the landowner claiming they need access). Where: Office of the Clerk of Superior Court in the county where the affected land is located. What: A petition starting a cartway special proceeding and service of the petition on each affected landowner. When: Service triggers the deadline to respond and prepare objections; the exact response date can vary by the type of filing and local rules.
Site review and damages: If the case proceeds, the clerk can appoint a “jury of view” to look at the property, lay out a route within statutory width limits, and assess damages to the landowners whose property is crossed. The landowners can file exceptions to challenge the route, necessity, or damages.
Decision and appeal: The Clerk of Superior Court can enter an order adopting, modifying, or rejecting the report. Any interested party can appeal to Superior Court for a jury trial de novo on issues including the right to relief, the location, and damages.

Exceptions & Pitfalls

Not every “need for access” qualifies: A court-ordered private way is not automatic. Disputes often focus on whether adequate access already exists, whether the request is necessary and reasonable, and whether the proposed location is the least burdensome practical route.
Multiple owners means multiple defenses: Because the route crosses two separately owned parcels, each owner can raise separate objections about necessity, route placement, and impacts, and the court may alter the proposed alignment.
Recording confusion: Sometimes a party records a plat or draft easement language and treats it like a granted easement. North Carolina recording rules matter, but recording alone does not replace a valid grant or a court order.
Scope creep: Driveway easements often turn into disputes about widening, utilities, drainage, maintenance, gates, and who can use it. Limiting the easement’s purpose, width, users, and maintenance responsibilities helps prevent later conflict.

Conclusion

In North Carolina, a developer usually cannot obtain a driveway easement across private land without the owners’ signed written easement or a court order in a limited private-way (cartway) special proceeding. When a cartway is requested, affected owners have the right to be served, to object, and to challenge both the necessity and the route, and damages must be assessed and paid before any right is acquired. The next step is to file a written response or exceptions with the Clerk of Superior Court by the deadline shown on the served petition.

Talk to a Real Estate Attorney

If you’re dealing with a developer trying to impose a driveway easement or private right-of-way across private land, our firm has experienced attorneys who can help explain the process, protect property rights, and track the deadlines for objections and hearings. 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.