The Statewide Title Newsletter and Legal Memorandum

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Issue  160  Article  272
Published:  11/1/2008

Dirt Tales From the Deed Vault - Episode 19
John Dillard, Vice President and Legal Counsel

            In this month’s installment the Statewide Title Dirt Tales continues to look at the topic of Access. 

            Jim was interested in moving his family into the country.  After looking at houses and land they found the perfect house and acreage, but there was one small problem.  Jim’s attorney advised that the property did not have legal access.  His attorney drafted an easement agreement, but when he approached the property owners abutting the road, they refused to sign the easement.  The road had always been there, they said, and nobody had ever been asked to sign a piece of paper. 

            Jim was disheartened when he heard this from his attorney, but his attorney had another idea.  He told Jim a Special Proceeding could be filed with the Clerk of Court, and if sufficient facts were present, the Clerk could declare the road to be a public right of way.  The attorney told the seller’s attorney about a statute, NCGS §136-96.1 which says:

§ 136­96.1. Special proceeding to declare a right­of­way dedicated to public use.

(a) A special proceeding under Article 3, Chapter 1 of the General Statutes may be brought to declare a right­of­way dedicated to public use if:

(1) The landowners of tracts constituting two­thirds of the road frontage of the land abutting the right­of­way in question join in the action;

(2) The right­of­way is depicted on an unrecorded map, plat, or survey;

(3) The right­of­way has been actually open and used by the public; and

(4) Recorded deeds for at least three separate parcels abutting the right­of­way recite the existence of the right­of­way as a named street or road.

(b) In a special proceeding brought pursuant to this section, the clerk of court shall issue an order declaring the right­of­way to be dedicated to public use upon finding that the provisions of subsection (a) of this section have been proven.

(c) Any right­of­way found to be dedicated to public use pursuant to this section that is proposed for addition to the State highway system shall meet the requirements of G.S. 136­102.6.

(d) This section shall not apply to any right­of­way established by adverse possession or by cartway proceeding. (2001­501, s. 1.)

         NCGS §136-96.1 is often overlooked when property is lacking access because of its seemingly steep requirements.  Are the requirements so prohibitive so as to render the statute unusable?  Item a(1) may be the most difficult prerequisite to meet.  It requires the owners of two-thirds of the road frontage along the road join in the petition.  This isn’t the same as getting two-thirds of the owners, but regardless it sets a high bar.  A(2) can be met by having a current survey done.  A(3) can be met with affidavits of prior use.  A(4) at first seems difficult to meet, but in actuality it may not be.  Deed descriptions often run with existing roads and if at least three deeds along the road do run with the road or reference the road as a monument then this requirement will have been met.

         The issue of access in North Carolina continues to be a problem.  Title companies are becoming more reluctant to insure access solely on affidavits of use.  Title attorneys are being called upon to certify valid and legal access and familiarity with statutes such as NCGS §136-96.1 should be added to the attorney’s arsenal.

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