Dec292025
Real Estate Q&A Series

What steps do I need to take to challenge or block an unauthorized easement application? – North Carolina

Short Answer

In North Carolina, an easement across private land usually cannot be created or recorded without a valid legal basis, such as the owner signing a properly executed easement deed or a court order in a special proceeding. To challenge an unauthorized easement application, the practical steps are to confirm what was filed (and where), give written notice disputing it, and then use the correct court process to stop recording, undo the filing, or obtain a court order declaring the claimed easement invalid. If the developer is trying to force access without consent, the developer may have to proceed through a Clerk of Superior Court special proceeding (a “cartway” case), which affected owners can contest.

Understanding the Problem

In North Carolina, a landowner may ask: can a developer place a driveway easement across undeveloped land without consent, and what steps are required to stop it if an easement is being “applied for” or threatened? The key decision point is what the developer actually submitted and to which office: a recorded easement instrument in the county Register of Deeds, or a court filing seeking a court-created access easement. The steps to challenge the effort depend on whether the issue is a recording problem, a court proceeding problem, or both, and whether the developer claims any existing right to use the land.

Apply the Law

Under North Carolina law, a private driveway easement across another person’s land typically arises from (1) a written easement deed or agreement signed by the landowner and properly recorded, or (2) a court order that creates or confirms an access right through a defined legal process. Recording rules matter because an easement that is not properly recorded may not protect the person claiming it against later purchasers or creditors. If someone tries to obtain a private access way over another’s land without consent, North Carolina provides a specific “cartway” special proceeding that starts before the Clerk of Superior Court and includes notice and an opportunity to be heard.

Key Requirements

  • Identify the legal mechanism being used: A recorded “easement deed/agreement” is challenged differently than a court petition seeking a court-created access easement.
  • Show lack of authority or legal basis: The challenge usually focuses on the missing owner signature/consent, defects in execution/acknowledgment, or the absence of any court order allowing the easement.
  • Use the correct forum and timing: Recording disputes often involve the county Register of Deeds and (if needed) Superior Court; cartway requests must be litigated in a special proceeding before the Clerk of Superior Court, with a right to appeal for a jury trial in Superior Court.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The developer reportedly applied for a driveway easement across undeveloped land without consent and without discussing it with the affected owners. If the developer tried to record an easement deed or agreement without the owners’ signatures, that typically creates a recording-and-title problem that can be challenged because the owners did not execute the instrument. If the developer instead filed (or is about to file) a court petition seeking a court-created access way, the challenge usually focuses on contesting the petition in the required special proceeding before the Clerk of Superior Court and disputing whether the developer meets the statutory conditions for a court-ordered cartway and the proposed location.

Process & Timing

  1. Who files: The landowner(s) whose land is affected. Where: Start with the county Register of Deeds (for recorded instruments) and the Clerk of Superior Court (for court filings) in the county where the property sits. What: Obtain copies of any recorded easement instrument (book/page or instrument number) and any court petition or notice of hearing. When: As soon as the filing is discovered, because a recorded document can cloud title and a pending court case can move quickly.
  2. Recording challenge step: If an instrument has been recorded, counsel often sends a written demand disputing the claimed easement and requesting a corrective filing (for example, a release, correction, or withdrawal) that removes the cloud. If the dispute continues, the next step is typically a Superior Court civil action seeking a declaration that no easement exists and, when appropriate, injunctive relief to stop use or further recording attempts.
  3. Cartway (court-created access) challenge step: If the developer filed a cartway special proceeding, the affected owners must respond in that proceeding, participate in the process (including the “jury of view” process and the location decision), and file timely exceptions to the report if needed. A final decision from the Clerk of Superior Court can be appealed to Superior Court for a jury trial on the issues, including the right to relief and location.

Exceptions & Pitfalls

  • “Application” versus legal authority: Many disputes come from confusing a planning/permit step with a property-right step. A driveway permit, subdivision plat, or site plan approval is not the same thing as a valid easement across private land.
  • Not checking both offices: An owner may check only the Register of Deeds and miss a court-filed special proceeding (or vice versa). Both should be checked.
  • Waiting for construction activity: If equipment shows up, emergency injunctive relief may be needed, but it is often harder and more expensive once work begins. Early written notice and early court action can reduce risk.
  • Ignoring access-law pathways: If the developer lacks consent, the developer may try to use a cartway proceeding. Owners should be ready to contest whether the petitioner qualifies and to contest the route and scope, because the location and width can materially affect future use of the land.
  • Title “cloud” not cured by private letters: A demand letter can help, but a recorded instrument often requires a corrective recorded document or a court order to fully clear title for future development, financing, or sale.

Conclusion

In North Carolina, a developer generally cannot create a driveway easement across private land without either a properly executed, recorded easement deed signed by the owner or a court order entered through the correct proceeding. The practical steps are to confirm what was filed, give written notice disputing any claimed easement, and, if it is not promptly corrected, file the appropriate court action to declare the easement invalid and stop further attempts. If the developer filed a cartway special proceeding, the next step is to respond and raise objections promptly after service.

Talk to a Real Estate Attorney

If a developer is trying to place or record a driveway easement across private land without consent, experienced attorneys can help identify what was filed, challenge it in the correct forum, and protect title and future access plans. 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.

Category: Real Estate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.