Title: Easement by Necessity and Landlocked Property in NC | FOUND Description: An easement by necessity gives landlocked land a legal way out over land once in common ownership. The elements, the cartway option, and what the record shows. Canonical: https://lotsfound.com/insights/easement-by-necessity/ # Easement by necessity: access for landlocked land An easement by necessity is a right of access that a court implies when one owner sold off a parcel that had no other legal way to a road. North Carolina courts require common ownership and a necessity that arose from the conveyance. Where no common owner exists, the cartway statute may apply. [Start a land search](/services/land-and-acreage/) In this article 1. [What landlocked means](#what-landlocked-means) 2. [Express and implied easements](#express-and-implied-easements) 3. [The elements of an easement by necessity](#the-elements-of-an-easement-by-necessity) 4. [The cartway proceeding when there was no common owner](#the-cartway-proceeding-when-there-was-no-common-owner) 5. [What the deed and plat show that GIS does not](#what-the-deed-and-plat-show-that-gis-does-not) 6. [Who answers the question](#who-answers-the-question) 7. [Key recap](#key-recap) 8. [Questions](#questions) 9. [References](#references) > **Quick summary:** This guide explains what landlocked means, how an easement by necessity arises in North Carolina, and how the cartway statute differs from it. It is for buyers and owners of tracts with no recorded road access. The key takeaway: a path you use by permission is not legal access, and the chain of title decides which remedy is open to you. ## What landlocked means Landlocked land has no legally enforceable access to a public road. Physical access is not the test. A tract can have a farm path, a gate, and a neighbor's goodwill and still be landlocked in law. Permission is the usual trap. A neighbor can revoke permission at any time. The North Carolina Court of Appeals made this point in a [2008 opinion](https://appellate.nccourts.org/opinions/?c=2&pdf=3646): permissive use could be withdrawn, which would force another lawsuit and could hurt the land's value. A road beside a tract does not settle the question either. See [A road beside the land is not a way in](/what-we-check/access-and-roads/). ## Express and implied easements An easement is a right to use another person's land for a stated purpose. Access easements come in two broad kinds. **Express easements.** An owner signs a written grant of a right-of-way. State law requires holders of [deeds and agreements for rights-of-way and easements](https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_47/GS_47-27.html) to record them with the register of deeds in the county where the land lies. An express easement is the strongest form of access, because the record shows its location and terms. **Implied easements.** A court finds the easement from the facts, with no written grant. The 2008 opinion lists the claims a landowner raised in one access dispute: an easement by necessity, an easement implied by prior use, an easement by estoppel, and an easement by prescription. Prescription rests on long use and is covered in [Prescriptive easement: how long use becomes a right](/insights/prescriptive-easement/). ## The elements of an easement by necessity An easement by necessity exists in North Carolina when the claimant proves two elements, as the [Court of Appeals stated them](https://appellate.nccourts.org/opinions/?c=2&pdf=3646): 1. The claimed dominant tract and the claimed servient tract were once held in common ownership, and a conveyance severed that ownership. 2. The necessity for the easement arose out of that conveyance. The court's reasoning rests on intent. When an owner conveys land, the law presumes the owner conveys whatever the buyer needs for the beneficial use of that land. Four points from the opinion shape most claims: - **Timing.** The necessity must arise at the time of the conveyance from the common owner. - **Distance in the chain.** The owner of the servient tract need not be the immediate grantor. Common ownership at some earlier time is enough. - **Degree.** Absolute necessity is not required. Physical conditions and use that would lead a person to believe the grantor intended access are sufficient. - **Permission.** An owner with only permissive access, and no legally enforceable right-of-way, may still be granted an easement by necessity. The 2008 case shows how far back the chain can reach. A tract was divided among six heirs in 1925. One heir's lot had no road access. Decades later, its owner reached the road over a farm path and, later, by permission across other land. The court held that he had a right to an easement by necessity over the lot from the 1925 division that touched the road. The opinion also cites an earlier case in which owners with only permissive access could not obtain a deed of trust to build a house. > **The short version:** An easement by necessity needs a common owner in the chain of title and a sale that cut the land off. Permission from a neighbor does not defeat the claim, because permission is not a legal right. ## The cartway proceeding when there was no common owner When no common owner ties the tracts together, the cartway statute may give a way out. A cartway is a private way to a public road, laid out by a special proceeding. It works like a limited form of eminent domain. **Who may petition.** The [cartway statute](https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_136/GS_136-69.html) is open to a person engaged in, or preparing for, specific uses of land with no public road or other adequate access. The listed uses are cultivation, cutting and removing standing timber, working quarries or mines, operating industrial or manufacturing plants, and operating a public or private cemetery. Residential use is not on the list. A North Carolina real estate attorney tells you whether your use qualifies. **Where it is filed.** The proceeding starts with a [petition before the clerk of superior court](https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_136/GS_136-68.html) in the county where the affected land lies. Any interested party may appeal to superior court for a jury trial on all issues. **What the court does.** If the court finds that a private way meets the statute's test, it appoints a jury of view of three disinterested freeholders. The jury lays off a cartway not less than 18 feet and not more than 30 feet wide and assesses the damages to the owner whose land it crosses. The petitioner pays those damages and the costs into the clerk's office before acquiring any rights. **How long it lasts.** A cartway can later be [altered or abandoned](https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_136/GS_136-70.html) in the same way. A cartway for timber removal ends after five years unless the petition and judgment set a longer time. The cartway test treats permission differently from the necessity test. Under the [pattern jury instruction](https://sog.unc.edu/sites/default/files/pji-master-2024/civil/840.30%20Cartway%20Proceeding.pdf), a private right-of-way or permission to cross another person's land counts as adequate access, unless its physical condition makes it impracticable to use. > **Take action:** Ask for a read on access before you make an offer on a tract with no road frontage. Start with [Acreage that holds up after the survey](/services/land-and-acreage/). ## What the deed and plat show that GIS does not A county GIS map shows parcel shapes and nearby roads. It does not show whether a tract has a legal right to cross the land between it and the road. The recorded documents answer different questions: - **The deed.** A deed can grant an access easement with the land, often in words such as "together with a right-of-way". It can also reserve one. Read the full legal description, not the tax card. - **The plat.** A recorded plat can show private roads, access easements, and their widths. Read [How to find property lines](/insights/how-to-find-property-lines/) for where the plat fits. - **The chain of title.** Old deeds show whether the landlocked tract and a road-front tract once had one owner. That fact decides whether an easement by necessity is possible at all. - **Other easements.** A recorded strip may serve a utility, not access. See [Utility easements: what they allow and how they shrink usable land](/insights/utility-easement/). A private easement covers the land between the tract and the road. Where the way meets a state road, the connection itself needs approval. See [NCDOT driveway permit: how access to a state road works](/insights/ncdot-driveway-permit/). ## Who answers the question A North Carolina real estate attorney decides whether an easement by necessity exists and brings the court action if one is needed. The clerk of superior court hears a cartway petition. A licensed land surveyor locates and describes the easement on the ground so it can be recorded. The lender decides whether the access is enough to finance a house or a land loan. The record shows the deeds, plats, and chain of title. It cannot show what a court will find about intent or necessity. We read the record in a fixed order and mark the access questions for the attorney. ## Key recap - Landlocked land has no legally enforceable access to a public road. Permission is not legal access. - An express easement is a recorded written grant. An easement by necessity is implied by a court. - North Carolina requires common ownership severed by a conveyance and a necessity that arose from that conveyance. - With no common owner, the cartway statute may apply to listed uses, with a way 18 to 30 feet wide and damages the petitioner pays. - The deed, plat, and chain of title show what GIS cannot. An attorney confirms the right. ## Questions ### What is an easement by necessity? It is a right of access that a court implies when one owner conveyed part of a tract and left that part with no legal way to a road. The law presumes the owner meant to convey access with the land. ### How do I get access to landlocked property in North Carolina? Start by asking a neighbor for a recorded express easement. If the chain of title shows a common owner, an attorney can assess an easement by necessity. If not, the cartway statute may apply to listed uses such as cultivation or timber. ### Does permission to cross a neighbor's land count as access? Not for an easement by necessity. Permission can be revoked, and a Court of Appeals opinion held that an owner with only permissive access may still be granted the easement. In a cartway proceeding, permission can count as adequate access. ### Can I finance or build on landlocked land? A lender may refuse to lend on land or a house without legally enforceable access. One North Carolina case cited by the Court of Appeals involved owners who could not obtain a deed of trust to build because their access was only permissive. ## References Primary sources cited on this page, in APA style. - N.C. Gen. Stat. § 136-68 (2025). [https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_136/GS_136-68.html](https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_136/GS_136-68.html) - N.C. Gen. Stat. § 136-69 (2025). [https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_136/GS_136-69.html](https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_136/GS_136-69.html) - N.C. Gen. Stat. § 136-70 (2025). [https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_136/GS_136-70.html](https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_136/GS_136-70.html) - N.C. Gen. Stat. § 47-27 (2025). [https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_47/GS_47-27.html](https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_47/GS_47-27.html) - North Carolina Conference of Superior Court Judges, Committee on Pattern Jury Instructions. (2015, June). *Cartway proceeding* (N.C.P.I.-Civil 840.30). North Carolina pattern jury instructions, general civil volume. UNC School of Government. [https://sog.unc.edu/sites/default/files/pji-master-2024/civil/840.30%20Cartway%20Proceeding.pdf](https://sog.unc.edu/sites/default/files/pji-master-2024/civil/840.30%20Cartway%20Proceeding.pdf) - North Carolina Court of Appeals. (2008, September 2). *Jernigan v. McLamb* (No. COA07-1540). [https://appellate.nccourts.org/opinions/?c=2&pdf=3646](https://appellate.nccourts.org/opinions/?c=2&pdf=3646) ## Buying land: records, survey, and title - [One parcel. 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