Legal Question in Real Estate Law in North Carolina
I have a legal written easement for a driveway that lays across a neighbors vacant land and after purchasing my house, put 21K into improvements - drainage, gravel, fencing, maintenance etc. The neighbor on the other side of the drive has vacant property for sale which has frontage to the main road. He has been showing the property and telling prospective buyers that they can use our driveway to access the property and he now has a solid buyer and ready to write the purchase and sale. The seller has had a verbal "gentleman's agreement" for some years that he could travel down the easement/driveway to access his property to hunt etc which he does maybe a couple of times a year. Now he is claiming that under the law, he know has an easement of our driveway because he has used it over the years. We say that it was out of convenience, not necessity since the parcel is not "landlocked" and has road frontage. When approached by the seller over the weekend about signing a maintenance agreement for the driveway I refused telling him there is not a shared driveway pointing out that there is frontage to the main road and the buyers/new owners need to use that to put in their own driveway - to which he responded but they want a nice, pretty, well maintained free driveway like yours!
Two part question - does he in fact have an easement by implication (in my research it doesn't seem to fit the criteria) and secondly, what do we need to do to put this issue to rest? Should we get a document signed by the owner of the land the easement is on stating that there is no formal easement that conveys with the sale of the property? Or do we just let it go and address it at the point at which the new owners attempt to build and use our driveway? I did point out to the seller that if it has been his easement as well, then why has he never paid anything towards the maintenance to which he responded "because I don't use it"!
1 Answer from Attorneys
No, he does not have any easement. If there is nothing recorded then he has no rights. In order to have any other kind of easement based upon use for 20 years (which use has to be open, hostile and without permission) he would have to file legal action. Sounds like all he had was the agreement of the former owner to use it, which specifically defeats any kind of implied easement.
You do not have to do anything. When the new owner tries to use the driveway, simply block them and tell them they are not permitted to use it.
Mind you, the owner of the land the easement lies on always has the right to grant them an easement, as I assume your easement is non-exclusive. So if the seller approaches the landowner and asks for one, and the owner grants it, you can't block that.
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