Easements in North Carolina Eminent Domain and Condemnation Cases
Property law can be weird. There are many different types of ownership interests in property, and they often sound kind of funny. For example, one might say that you don’t really own your land, instead you own a “fee.” “What? I thought you paid a fee, how can you own a fee?” is what you might be thinking. Just trust me and keep telling yourself, “property law is weird.” For the most part, the blame lies with about 1,000 years of history and the feudal system that existed in England. It can be interesting, and it is definitely complex, but for most landowners involved in a condemnation or eminent domain case, they are just trying to figure out what it means for them.
Most people own land “in fee simple.” This means that they own the land permanently and without limitation. But there are many circumstances where someone owns land that involves an “easement”, which is something less than full ownership. In essence, an easement is a right to use land that is actually owned by another. You cannot permanently occupy or possess the land in an easement, but you can use it, often for a particular purpose. An easement often arises in a situation like this diagram where one piece of land doesn’t have access to the road:
Obviously it is important that the back lot have access to the street, and the driveway has to cross someone else’s property. In this type of situation, the owner of the back lot will probably have an easement on the front lot. The use of the easement is for going back and forth from the back lot to the road. The owner of the back lot could not build a garage on the front lot, and the front lot’s owner could not put up a fence blocking the driveway. So the back lot owner has an easement on the front lot, and the front lot is subject to this easement. In this case, the front lot could be said to be an encumbrance or an impediment.
Making things even more complicated, there are many different types of easements. Some affect underground rights, others surface rights, while still others might be entirely in the air above! Some easements are quite temporary, others are long term, and others are permanent. Like I said, property law is complicated and weird! And every state is different, so a North Carolina easement might be treated somewhat differently than one in another state.
How do you even know if you have an easement? Or consider the reverse – how do you know if someone else has an easement on your land? Well, you can start by looking at the deed. Reading a deed often reminds us that property law is weird because the way that land is described sometimes comes straight out of medieval England. Fortunately, modern deeds tend to refer to other plans, drawings, plats, and documents. These might make a little more sense, but as you can see, a sample drawing can be pretty confusing too.
Here, one North Carolina city has an easement for very old underground water and sewer lines. When these water lines had to be replaced, some homeowners were pretty surprised to learn that their decks, garages, or houses had been built on the easement. Instead of bulldozing these houses, however, the utility simply tried to re-route them. Some owners gave new easements to the utility, while others had these easements moved to reflect the new path of the underground lines.
If an easement is acquired in a North Carolina eminent domain or condemnation case, the landowner is entitled to compensation. How much compensation, though? Valuing easements is a particularly complex area of real estate appraisal. While a layperson might have a rough idea about the value of a residential property, it is doubtful they will have any idea about how to value an easement. It isn’t just the value of the easement itself that has to be considered, but how the easement might diminish the value of adjoining property is vitally important to assuring the landowner receives just compensation. North Carolina courts have ruled in condemnation cases that the value of the easement is a question of fact, as is the affect on the remaining land relating to the easement. Some factors in this value can be the cost of alternative access, the value of land improvements such as crops, trees, or buildings.
If you are wondering about your North Carolina condemnation case or a taking by eminent domain, you should also be wondering about whether you have any easements or might be required to grant an easement to the condemning authority. That condemning authority might be the North Carolina Department of Transportation (NCDOT), or perhaps a utility company. Most eminent domain cases will involve some type of easement, whether the land owner realizes it or not. Property owners affected by the Winston Salem Northern Beltway, Greensboro Urban Loop, Durham East End Connector, or the Charlotte Lynx Blue Line Extension will all have to consider the impact of easements on their condemnation case.
You should consult with an attorney with the experience and expertise to represent your interests as an owner and protect your legal rights. The lawyers at Sever Storey have experience in negotiation and litigation of condemnation cases in North Carolina and other states, and we are dedicated to getting our clients the full value for their land, whether it involves and easement or not. Sever Storey is a multi state law firm, and we exclusively represent the rights of landowners. We never work on behalf of the organizations taking property through condemnation. If you have any questions about easements in North Carolina or about a eminent domain or condemnation matter, contact us for a free consultation. You can reach us by phone at 888-318-3761, or our website at www.landownerattorneys.com
Shiloh Daum, Sever Storey, LLP
Copyright 2013
Keywords: North Carolina, eminent domain, condemnation, easement, encumbrance, fee simple, just compensation, landowner attorneys, NCDOT,utilities, utitlity company, appraisal, valuation, property value, Winston Salem Northern Beltway, Greensboro Urban Loop, Durham East End Connector, Charlotte Lynx Blue Line Extension Phil Sever, Tonny Storey, Shiloh Daum, property taking.
