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  1. #1
    Join Date
    Jan 2010

    Default Do I Have Any Rights to a Driveway in Use for 22 Years Without Deeded Easement

    My question involves an easement in the state of: North Carolina

    I'm in the process of purchasing a house in NC. It was sold at a Judicial Sale auction after the owner was deemed incompetent and placed in assisted living. There was an attorney representing the seller at the sale.

    The house's driveway is off a blacktop "road" (easement) that's off of a State road. The blacktop road/easement is my concern. It runs past 3 properties (including the one I'm buying) and is part of a 16 acre tract behind these parcels. The deed for the 16-acre parcel does not mention any easement, but the deeds of the other two properties along the roadway list it as a 60-foot easement for their properties - although the parcel is 30' wide there by the deeded description (of the 16-acre piece), so I'm surmising the remaining 30' would come from the properties on each side of the easement, with 15' coming from my side. The deed for the home I'm buying does not mention use of this easement; it only states, "Easements of record" and it references it in the property description: " a point marked by an iron, the northwestern corner of a 60 foot right of way..."

    I've looked for prior deeds that might mention the easement for "my" property, but haven't found anything other than the original purchase of the larger parcel back in 1922. The entire piece was owned by one family and has been split up over the years. The house I'm buying was split off upon the death of the original owner in 1998 and went to a family member.

    Prior to placing my bid, I asked the attorney representing the seller if the buyer would be guaranteed use of the road in question and he said they would. Since placing the bid, I did some research and couldn't find where this was stated in the deed, so I called the attorney yesterday and he said it would not be a problem. I told him I was unable to find anything in the deed and he said he'd look and I should call him next week. But he told me not to worry about it, since it was in use for so long.

    The house was built in 1982 and the property was divided in 1998. Until now, it's been owned by a member of the family who purchased the entire parcel in 1922. However, the 16-acre tract (where the easement is located) was sold in 2009 and is no longer owned by family.

    I just realized the deed for the property I'm buying is stamped "MINOR SUBDIVISION APPROVAL" with a date of 1998. I will return to the County offices to see if there is a subdivision map filed or anything else that might shed additional light on the situation.

    The property does have frontage on the State road, so I could use that if necessary, but the existing driveway and garage are on the opposite side of the house and due to the lay of the land, would be inaccessible.

    I'm wondering if I'd have any rights to use this easement if they're not specifically stated in my deed.

    Thank you.

  2. #2
    Join Date
    Sep 2010

    Default Re: Do I Have Any Rights to a Driveway in Use for 22 Years Without Deeded Easement

    You need to take everything to a lawyer, your own laywer. The seller's lawyer's verbal representations mean squat.
    Without a deeded easement you're stuck with the expense of proving a prescriptive easement if you need to push the matter.
    It's hard to say whether you could prevail in a prescriptive easement or not. Nothing you've said rules it out nor guarantees it.
    You are allowed in NC to tack on to the previous owner's adverse use, but there are other issues as well.

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