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  1. #1
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    Default When Can You Amend an Easement Based Upon Abandonment or Adverse Possession

    My question involves real estate located in the State of: North Carolina

    Hey guys, there's no one single topic that these questions fall under because I have an intricate, multi-faceted easement case. I'm the servient estate, my neighbor is the dominant estate and has a permanent, non-exclusive ingress & egress easement through part of my property. I am looking to dissolve or amend the easement due to adverse possession, abandonment, and a bad faith filing by the dominant estate done in order to harass me.

    Summary of the facts:
    - I have a chain link fence going through most of the easement. The fence has been there for over 21 years and the easement has existed for 21 years. NC adverse possession law is 20 years.
    - Previous owners of my property/servient estate (concept of tacking) have maintained & improved the property through which the easement goes, including building a greenhouse, planting bushes, handling routine maintenance, and parking on the easement to the detriment of the dominant estate. Arguing abandonment due to these facts.
    - Dominant estate does not have a survey of the easement and has caretakers who have maliciously damaged my property, both on and off the easement (undue burden), by refusing to honor the property lines marked by my surveyor. Damage has included chopping down my trees not on the easement and poisoning my bushes & grass on the easement - yes, poisoning, not maintaining. The dominant estate itself has not communicated with me about anything - it's a trust of people living in another state - I've never seen or spoken to them. All the harassment, property damage, etc. is coming from caretakers that act on behalf of the dominant estate. I've filed criminal assault and civil 50C no contact orders against the caretakers for their actions. Arguing bad faith filing by the dominant estate because they have not bothered to educate themselves about the easement or communicate with me, and instead have filed categorically false allegations in a civil complaint, relying solely on information from their caretakers who have demonstrated a history of harassment towards me.

    I would greatly appreciate it if you guys could help me with some case law that sets precedent for what I'm arguing, preferably in the state of NC but nationally may work depending on the case:

    1. Adverse possession of an easement in accordance with state laws, preferably where adverse possession was demonstrated by a fence, showing open & notorious, continuous & exclusive, etc.
    2. Abandonment of an easement showing continued maintenance & property improvement by the servient estate.
    3. Bad faith filing of an easement complaint where either estate did not behave appropriately and grossly misrepresented and/or fabricated facts.
    4. Parking on an ingress & egress easement causing undue burden or resulting in punitive damages, holding the dominant estate in contempt of the easement. For example, if dominant estate can't ingress & egress with a car because of a fence or other obstruction, dominant estate can't just park on servient estate's property. That is not the intended use of an ingress & egress easement unless specified in the written agreement.
    5. Lastly, what is the legally correct way to hold the dominant estate responsible for the actions of their caretakers? I want to include the caretakers in my response/counterclaim, treating them as an extension of the dominant estate.

    Thank you in advance for your help!

  2. #2
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    Default Re: Easement Case Law in North Carolina

    You cannot adversely possess your own property. The issues you address as a basis for adverse possession would support a claim of abandonment if in fact the easement was no longer used which the improvements would show to be factual.

    Here is one case involving abandonment of an easement.

    https://scholar.google.com/scholar_c...en&as_sdt=4,34

  3. #3
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    Default Re: Easement Case Law in North Carolina

    Are you sure? I had one attorney tell me that but two other attorneys told me that you can argue adverse possession because even though it's still my property, the easement puts a burden on it by preventing most forms of construction/blocking off of the property, but if that is done for 20 years, the servient estate can remove that burden? I found some examples online in different states that say it's a valid argument.

    This is such a gray area even the attorneys I speak to can't seem to agree what the right legal arguments are lol.

    Edit: the link you provided is fantastic, thank you! In the long last paragraph, it actually talks about adverse possession being a valid argument, even though for that particular case it was not because it "falls fall short of the required twenty years' statutory period." It also talks about the need to put the dominant estate on notice for the claim on the property, and that if the dominant estate themselves request the fence to be taken down, that means the fence is adverse to them. I have this exact situation! 2 years ago the dominant estate sent me a letter to take down my fence, demonstrating that it is adverse to their easement, but then they did not follow up or act on that, and now we're 21 years into the easement... Very interesting, thank you for the great link.

  4. #4
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    Default Re: Easement Case Law in North Carolina

    Since the court rejected the claim based on adverse possession and it would have clearly met the requirements of adverse possession, I’m not seeing how that supports your argument.

    I see nothing suggesting adverse possession but I do see support for a claim of abandonment. Again, one cannot adversely possess their own property. They are merely prohibiting the dominant tenant from using the easement and if they do not contest that prohibition, it would amount to abandonment.

    at least that’s my take on the issue.

  5. #5
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    Default Re: Easement Case Law in North Carolina

    Thanks for your help, I have a few follow up questions about legal terms and their meanings.

    On the easement it says that I retain absolute ownership of the land, and the easement is for purposes of ingress & egress. What does absolute ownership mean?

    What does this mean for maintenance, i.e. do I have the right to maintain my property as the owner, or can the dominant estate maintain as they see fit? What if their "maintenance" is done maliciously and actually does nothing to allow ingress & egress. Isn't that an abuse of the easement agreement?

    What is the exact definition of ingress & egress - i.e. is there some implication that it defaults to driving & walking unless otherwise specified?

    The easement says that the dominant estate shall refrain from damaging and injuring the property. They've done that and they've also injured me and my friends who live with me. Isn't that a serious abuse of the easement? Not only are they not using the easement, they are maliciously abusing it. Isn't that an even stronger argument than abandonment?

  6. #6
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    Default Re: Easement Case Law in North Carolina

    I can’t say I’ve heard the term absolute ownership used for this. I suspect it is meant to refer to the fact you have relinquished no ownership of any aspect of the property in granting the easement. More than anything I would think it is to avoid any sort of claim of ownership by the dominant tenant in the future.

    Ingress and egress is just what it says. It’s a means to access their property and nothing more. It’s nkt a parking lot. It’s nkt a garden space. it’s a driveway.

    As to maintenance; whomever shall use the easement and cause wear shall bear liability for the costs of maintenance. If the dominant tenant (and their guests, visitors, etc) is the only user of the easement, they are responsible for maintaining the easement.

    You can maintain it if you wish but you cannot do anything that would inhibit the dominant tenants rights. If you attempt to maintain it and charge the dominant tenant for the costs, if you aren’t a user of the easement, I would suspect you’ll have a fight on your hands if the dominant tenant disagrees with the costs.


    How are they abusing the easement? If they are doing anything on it close to it’s granted use, it would show they have not abandoned the easement.

    How is their claimed abuse of the easement causing you and your friends actual injury?

  7. #7
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    Default Re: Easement Case Law in North Carolina

    Quote Quoting jk
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    You cannot adversely possess your own property. The issues you address as a basis for adverse possession would support a claim of abandonment if in fact the easement was no longer used which the improvements would show to be factual.

    Here is one case involving abandonment of an easement.

    https://scholar.google.com/scholar_c...en&as_sdt=4,34
    Nice try but you are way off point in your cite. You are again incorrect. A servient tenant can indeed take back an easement by adverse possession if the elements of adverse possession are met for the statuary period. The issue of abandonment is completely different. The dominant tenant must make an affirmative action to signal the abandonment of the easement. That is not what has happened here.

  8. #8
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    Default Re: Easement Case Law in North Carolina

    Quote Quoting budwad
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    Nice try but you are way off point in your cite. You are again incorrect. A servient tenant can indeed take back an easement by adverse possession if the elements of adverse possession are met for the statuary period. The issue of abandonment is completely different. The dominant tenant must make an affirmative action to signal the abandonment of the easement. That is not what has happened here.
    Well, since the case law was specifically about abverse possession of an easement where the servient tenant wished to terminate the easement, it is on point.


    And show some case law to back up your statement on adverse possession of an easement.

    Quote Quoting budwad
    View Post
    Nice try but you are way off point in your cite. You are again incorrect. A servient tenant can indeed take back an easement by adverse possession if the elements of adverse possession are met for the statuary period. The issue of abandonment is completely different. The dominant tenant must make an affirmative action to signal the abandonment of the easement. That is not what has happened here.
    For a claim of adverse possession one must also make their claim known

    https://www.casemine.com/judgement/u...d7b04934570fe6pp


    Title may be acquired by adverse possession only if the possession is actual, open, notorious, exclusive, continuous, hostile, for the statutory period, and with intent to claim title to the land occupied. Wilson County Board of Education v. Lamm,
    276 N.C. 487,173 S.E.2d 281 (1970); Mizzell v. Ewell, 27 N.C. App. 507,219 S.E.2d 513(1975). An easement may be extinguished by adverse use by the owner of the servient property for the prescriptive period. Duke Power Co. v. Toms, 118 F.2d 443 (4th Cir. 1941); Hetrick, Webster's Real Estate Law in North Carolina 338 (1981). Possession is presumed permissive until it is proved that the occupant intended to claim against the true owner. Gibson v. Dudley, 233 N.C. 255,63 S.E.2d 630 (1951). The possession must be "evidenced by such unequivocal acts as will put the true owner on notice of the claim." Clendenin v. Clendenin, 181 N.C. 465, 467,107 S.E. 458, 459 (1921).


    I stand on my statement that one cannot adversely possess their own property. The adverse possession comes in the form of control of the easement, or more correctly, the prohibition of the dominant tenant to be allowed to use the easement. As you can see in the case law I provided it isnít as simple as mere possession and percieved control, but requires proof the intent of the action was not merely to possess and control the easment but to prohibit the dominant tenant from exercising their rights. That means it is different than a typical adverse possession claim where mere possession without necesserilly putting the owner on notice. The notice in a typical adverse possession claim comes in the form of the exclusive and notorious use. With the easement, there must be something to put the dominant tenant on notice that the intent of the action is reclaim the rights afforded the dominant tenant through the grant.

  9. #9
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    Default Re: Easement Case Law in North Carolina

    There are only two ways to amend an easement appurtenant. By agreement of the estates or by court order.

    You are correct that a property owner cannot claim adverse possession on his own property. But when it comes to extinguishing a non-possessory right to use the property in the form of an easement, you are not correct.

    If a dominant estate does not protect their rights they can lose them.

  10. #10
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    Default Re: Easement Case Law in North Carolina

    I am going to address an issue that I don't believe has been addressed. If you are going to claim abandonment, you could run into a problem if the land is undeveloped. The reason why easements are generally good forever is because sometimes many years pass before land is developed and therefore the easement is needed. If however, its a fully developed piece of property that has other ingress and egress to the property then abandonment is more viable.

    Its possible that the bad behavior on the part of the caretakers is a misguided attempt to assert the rights of the easement holder, and therefore to demonstrate that it is not abandoned.

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