The North Carolina Court of Appeals issued this decision affirming the trial court's order declaring void an easement deed that purported to grant the defendants the right to use "not more than two (2.00) acres" of a neighboring parcel without further elaboration. The decision underscores the enduring principle that express easements-whether appurtenant or in gross-must be described with sufficient certainty to avoid fatal vagueness. The court's holding provides important guidance to transactional practitioners and litigators alike on the drafting, interpretation, and enforceability of easements under North Carolina law.

The controversy traces back more than two decades. In 1998 and 1999, Jeffrey Henley purchased two tracts totaling just over seven acres from Timothy Hurst in Cabarrus County. On April 9, 1999, Hurst executed an easement deed (the "Purported Easement") in favor of Henley. The operative description read:

"This is an easement for JEFFREY WAYNE HENLEY for the total of not more than two (2.00) acres from the parcel owned by TIMOTHY ALAN HURST... the parcel being identified by Parcel Identification Number 5508-01-6168-000, S/W side Morehead Road (SR 1300), 81.99 Acres, Township #2."

No location of the easement within the 81.99-acre parcel was specified in the conveyance, nor was any purpose stated.

In 2006, both landowners conveyed their combined holdings (Henley's 3.5-acre tract and Hurst's remaining land, about 75.5 acres total) to Moorehead I, LLC, as part of a development project. The sellers received a promissory note secured by a deed of trust. Moorehead also obtained financing from Farmers & Merchants Bank, likewise, secured by a deed of trust and both deeds of trust were recorded in 2007.

After Moorehead defaulted, Farmers & Merchants initiated foreclosure proceedings. The Henleys intervened, alleging that the bank's deed of trust had been fraudulently altered. Following years of litigation, including two forensic document examiners and multiple appeals, the foreclosure was ultimately authorized, and title passed to Farmers & Merchants Bank in 2020.

In 2023, the Bank brought the present quiet title action, seeking a declaratory judgment that the Purported Easement was void and of no effect. The Henleys counterclaimed, asserting rights under the easement and raising defenses of laches and unclean hands, along with allegations of fraud in connection with the earlier foreclosure.

The trial court granted the Bank's motion for judgment on the pleadings under Rule 12(c), holding that the easement was void for vagueness and dismissing all counterclaims and defenses. The Henleys appealed.

The opinion framed the issues as:

1. Whether the trial court erred in granting judgment on the pleadings and declaring the easement void; and
2. Whether dismissal of the Henleys' affirmative defenses and counterclaims was proper.

The Court affirmed the trial court in full and we will limit our discussion to the latter issue and the Court's discussion of substantive law of easements in finding the Purported Easement void because the description was patently ambiguous. Citing Lester v. Galambos, 258 N.C. App. 28 (2018) the Court notes that easements are nonpossessory property rights allowing limited use of another's land and discusses the two principle forms they take:

Easements appurtenant attach to and benefit a dominant estate; they are created to enhance the use of specific land. Brown v. Weaver-Rogers Assocs., Inc., 131 N.C. App. 120, 123, (1998).

Easements in gross, by contrast, benefit no dominant estate but grant personal rights to individuals. Brown, 131 N.C. App. at 123.

North Carolina disfavors easements in gross and presumes an appurtenant easement where possible. Gibbs v. Wright, 17 N.C. App. 495, 498, (1973). Express easements must be described with "reasonable certainty." Wiggins v. Short, 122 N.C. App. 322, 327, (1996) (quoting Adams v. Severt, 40 N.C. App. 247, 249 (1979)). As the North Carolina Supreme Court explained in Allen v. Duvall, 311 N.C. 245(1984):

"When an easement is created by deed, the description thereof must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers."

The opinion observes that if the deed's description leaves the court "unable to derive therefrom the intention of the parties as to what land was to be conveyed," the instrument is void, citing Allen, 311 N.C. at 249. Purpose can also matter as it aids in defining scope. While an easement need not always state its use, the scope of the right is defined by the purpose intended by the parties. Swaim v. Simpson, 120 N.C. App. 863, (1995).

The Henleys argued the easement was in gross, conferring a personal right, and therefore need not be described with the same specificity required of appurtenant easements. The Court rejected this argument, noting that North Carolina law does not relax the requirements for in gross easements. Because all easements are interests in land, they must comply with the statute of frauds, including adequate description. See In re Thompson, 253 N.C. App. 46, and N.C.G.S. Section 22-2. The Court concluded:

Nevertheless, our precedent concerning specificity does not distinguish between types of express easements, and we discern no reason to depart from these rules in this context. In our view, it would defy logic to apply a less-exacting specificity standard to an express easement in gross when easements in gross are disfavored. See Shingleton, 260 N.C. at 455, 133 S.E.2d at 186. Therefore, express easements, whether in gross or appurtenant, must describe the easement with sufficient certainty to be valid. See Wiggins, 122 N.C. App. at 327...

The deed at issue granted Henley "not more than two (2.00) acres" of an 81.99-acre tract. It failed to identify:

The location of the two acres,

The shape or boundaries, and

The purpose or intended use.

As the Court explained, this left "such an uncertainty appearing on the face of the instrument itself" that no court could ascertain the parties' intent. Allen, 311 N.C. at 249.

Because the description could not be reduced to certainty by reference to extrinsic evidence, the Purported Easement was void ab initio. The Court also affirmed dismissal of the Henleys' counterclaims and defenses. Laches and unclean hands were unavailable because the plaintiff, as the prevailing party in foreclosure, was not estopped from asserting title rights. the allegations of fraud in the foreclosure process had been fully litigated in the prior action and were barred by res judicata and collateral estoppel. Thus, nothing remained to be adjudicated once the easement was declared void.

This decision is notable and has implications for North Carolina practitioners for several reasons:

1. The Court clarified that express easements in gross are subject to the same descriptive requirements as appurtenant easements. This ensures consistency in real property transactions and prevents circumvention of the statute of frauds.
2. Vague descriptions, particularly those describing acreage "floating" within a larger parcel, will almost certainly fail. Practitioners drafting easement deeds must ensure the location and purpose are stated with precision.
3. The opinion echoes the longstanding principle that courts will construe easements as appurtenant where possible and will not indulge uncertainties to uphold in gross rights.
4. To avoid the Henleys' fate, drafters should:

Attach surveys or plats showing the exact location of the easement.

Specify the purposes with clarity (e.g., ingress/egress, utilities).

Clearly identify whether the easement is intended to be appurtenant or in gross, and

Use language that provides a "pointer or guide" to both the land burdened and the land benefitted.

For North Carolina practitioners, the case serves as both a cautionary tale and a reminder: the devil is in the drafting. Failure to specify location and purpose may render an easement illusory "void and of no effect" thwarting the actual intent of the parties.