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Real Property

An Easement Crosses My Property – What Are My Responsibilities?

Robert Frost knows that “good fences make good neighbors.” If anything makes a bad neighbor, other than a bad fence, it is a bad easement. Easements can be a significant source of contention among neighbors, causing ill will, hostility, and sometimes costly litigation. Among the issues that may arise between the dominant estate holder (the person whose property is benefited by the easement) and the servient estate holder (the person whose property is burdened by the easement) are questions regarding who must maintain the easement area, what activities are allowed under the easement, and how to enforce each party’s rights under the easement.

Responsibility to Maintain the Easement

The North Carolina Supreme Court has held that the dominant estate holder is responsible for maintaining the easement area. Green v. Duke Power Co., 305 N.C. 603 (N.C. 1982). Unless language in the easement provides otherwise, the servient estate holder has no obligation to maintain the easement area. Id. As a result, "if the character of the easement is such that a failure to keep it in repair will result in injury to the servient estate or to third persons, the owner of the easement will be liable in damages for the injury so caused." Id.

Overburdening the Easement

To determine whether the dominant estate holder is exceeding the rights under the easement, the servient estate holder should look first to the language granting the easement. If the language is unclear (as often will be the case when a dispute arises), then the analysis may turn to the intent of the parties who created the easement. It therefore may be necessary to evaluate the circumstances that existed at the time the easement was created. Depending on the language of the easement and the circumstances existing at the time the easement was created, uses not expressly allowed could be found to be in violation of the servient estate holder’s rights. See Swaim v. Simpson, 120 N.C. App. 863, 463 S.E.2d 785 (1995) and Moore v. Leveris, 128 N.C. App, 276, 495 S.E.2d 153 (1998). In other cases, the seemingly expanded use may be deemed permissible. See Chestnut Branch, LLC v. Public Interest Projects, Inc. (COA04-1406, 2006 N.C. App.). In any case, determining the dominant or servient estate holder’s rights under the easement will require a careful review of the granting language, the surrounding circumstances, and the relevant case law.

Enforcement of Easement Rights

What do you do if the easement holder is overburdening or failing to maintain the easement? A court can issue a mandatory injunction, requiring the easement holder to take certain action (such as maintaining the easement by clearing the easement area), or a prohibitory injunction, requiring the easement holder to refrain from certain action (such as using a utility easement for vehicular access). The same remedies may be available to the dominant estate holder if the servient estate holder is obstructing access to the easement. Obtaining a mandatory or prohibitory injunction against another party requires filing a complaint in the county in which the property is located and holding a hearing before a superior court judge. At the hearing, the judge has the option to impose damages in favor of the aggrieved party. The damages could be calculated to cover compensation for injuries suffered as a result of the violation or the difference in value of the easement before and after the violation.

In North Carolina, there are several different forms of real property.  Most people are familiar with a traditional single family home that sits on a defined lot in either a planned development or on a private tract of land.  Other people desire to live in a home with fewer maintenance requirements.  This can be either a townhouse or a condominium.

Town-homes are similar to free-standing single family homes but they are generally located side by side and sometimes include a small yard or patio.  Town-home owners also own the land beneath the townhouse which is sometimes referred to as the “footprint.”  There is almost always a homeowners association law that maintains the common area shared by all the town-home owners in the neighborhood.  The association may also provide insurance and/or maintenance for the outside of the buildings.  The assessments will vary depending on the services being provided and it is important for the owner to understand the details which will be spelled out in the restrictive covenants and bylaws for the association.

Condominiums are a relatively new form of real property ownership which were first built in the 1960s.  They often resemble town-homes from the outside but they are different in many ways.  Instead of owning the land, a condominium owner has an interest their individual space which was quite a revolutionary idea fifty years ago.  As opposed to owning the land beneath the building, the owner of a condominium owns an air space.  The specific ownership interest is defined in the governing documents and is generally from the finished interior surfaces and in.  The rest of the property, including the outside of the buildings, the land, and any amenities are considered common area and are owned jointly by every condominium owner in the development.  The assessments for condominium owners go toward maintenance of the common area.  Because the condominium association maintains much more property than an association in a typical planned community with single family homes, the assessments are often much higher.  On the other hand, the condominium owner’s personal household expenses can be much less than those for an owner of a single family home since the association maintains the building and provides insurance.  Again, it is important for the owner to carefully review the association’s governing documents to fully understand their rights and obligations.

Real Property is often owned by more than one person. Joint ownership can occur as a result of a joint purchase of real property or as a result of inheritance. In both cases, the joint owner has an undivided interest which means that although the joint owner owns a one- half interest in the property, they cannot point to the specific portion of the property that they own.

Often, issues arise between joint owners of property over how to use the property, who pays the taxes, who pays for repairs or a new roof on the property, or whether to sell the property. When the property owners cannot agree, a joint owner has the right to initiate a Partition proceeding.

A Partition proceeding is a lawsuit filed by a joint tenant or tenant in common owner of property to force the division or sale of real property. Partition actions start with a petition and are Special Proceedings brought before the Clerk of Court. A Partition action must be instituted in the County where the land lies. There are two types of Partition proceedings, Partition in kind and Partition by sale.

Partition action in kind is possible only when the property can be physically divided in a manner that each joint owner receives their share. For example, one hundred acres could be physically divided to allow for two joint tenants each owning a fifty percent interest to receive fifty acres. Of course, who has road frontage, access and the condition of the land must be considered as well. In Partition in kind proceedings, the Clerk of Court appoints three  commissioners to oversee the division of the property. The law says Courts favor Partition in kind rather than Partition by sale.

Partition by sale occurs when the property is unable to be physically divided or cannot be divided equally. For example, a single one-half acre lot with a house constructed in the middle of the lot cannot be divided in a manner that would allow each joint owner to receive their interest. In Partition by sale proceedings, the Clerk of Court appoints a Commissioner to oversee the sale of the property. The proceeds of the sale are deposited with the Clerk of  Court. A hearing is held before the Clerk of Court to divide the proceeds.

Partition proceedings are the law’s answer when joint property owners cannot agree. Disagreements regarding the sale, use, or costs of property may be resolved by retaining an attorney to initiate a Partition proceeding or to work out an agreement between joint owners.

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