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Issue  24  Article  58
Published:  7/1/1997

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Cartway Statute Revision Sunset to Expire
Chris Burti, Vice President and State Legal Counsel

NCGS 136-68 et seq were revised in 1995 and the statutory amendment included a sunset provision due to expire June 30, 1997. Legislation introduced in the 1997 session of the General Assembly by Senator Eric Reeves (Senate Bill 456) and Representative John Brown (House Bill 501) would have further amended the statutes and either extended or removed the sunset. It appears that both bills are dead in committee and that there will be no action to extend or remove the sunset from the cartway statute. We were unable to contact either representative prior to the press deadline for this issue of the newsletter for their comments regarding the status of these bills. As a result, the cartway revision will expire and the old version of the cartway statute will go into effect July 1, 1997, unless successful action is taken in the legislature to revive these bills prior to adjournment. If the cartway revisions do in fact expire no nonappropriation amendments will be considered by the short session in 1998 unless deemed noncontroversial and therefore no action to amend the cartway will occur until 1999.

While the 1995 amendments substantially improve the old statute making the bringing of a cartway proceeding easier and narrowing the issues, the amendment left several questions unanswered and in need of clarification. Under the 1995 amendments, a property owner of a parcel of land seven (7) acres or greater used as a homestead would be entitled to a cartway if there was no record access. Since the amendment did not define the term homestead, questions have arisen as to whether this required the homestead to be the owners principal residence or if it was a second home or vacation home, would the owner still be entitled to bring a proceeding? Another question arises under similar situation where a large tract owner brings a proceeding under the homestead provision, obtains a cartway, pays the subservient land owner compensation for the cartway and then wishes to subdivide the tract of land. The statute gives no guidance as to whether the land owner is required to compensate the subservient land owner for each additional cartway or if he is entitled to assign his rights in the cartway to all of his grantees. Additionally, no guidance is given as to whether all subsequent grantees tracts must be at least seven (7) acres or more or may be smaller. Subsequently yet another question arises... if the owner of a seven (7) acre tract of land obtains a cartway, may he then subdivide the seven (7) acre tract and provide access to the grantees over the cartway?

The cartway amendment provides that a cartway may be awarded if the landowner is preparing his property for one of the approved purposes. It would be helpful if a future amendment of the statute gave some guidance as to how long a period of time the land owner can "prepare" the property before the subservient landowner would be able to file a motion in the cause to terminate the cartway. Additionally, clarification will be helpful as to whether a landowner acquires a cartway in preparation of the property for one of the approved purposes would have the right to assign the cartway to a grantee of the tract prior to completion of the improvements. Presumably one would be able to do so, however, a great deal of uncertainty would be eliminated if any future amendment of the cartway statute included provisions addressing the alienability of the cartway rights granted under the order. Any practitioners drafting orders in cartway proceedings would be well advised to address the alienability issues in the order granting the cartway.

Any comments or observations concerning other areas of concern or uncertainty in the existing revision or any suggestions concerning future revisions would be welcomed. If there is sufficient interest in this issue, we will address it again in a future article updating the status of the statutory amendment.

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