The 1995 Session of the General Assembly has corrected what has been perceived as a deficiency in our Cartway Statute N.C.G.S. 136-68 et seq. Now owners of certain single family homesteads may be able to establish access under the revised statute and all owners may find the new standards easier to meet. A discussion of the significant changes follows.

G.S. 136-68 now provides that any interested party may appeal the decision of the Clerk of Superior Court for a jury trial de novo on all issues. Prior to amendment the statute merely provided for the right of appeal without right to demand a jury and without specifying what issues were to be heard. Since a trial de novo was specified the latter change probably does not add anything.

G.S. 136-69 incorporates the changes that to the landowner and real estate attorney are probably most significant. The amendment includes a statement of purpose to provide landowners who do not have an easement or right of way of record with a "legal means of obtaining access...". It now offers the benefits of the statute to owners of land used for "single family homestead" consisting of at least seven acres of land where before it only applied to land used for cultivation, timber, mining, industry or as a cemetery. An interesting question arises from the legislature’s use of the word "homestead" as opposed to "residence". It could be argued that in order to qualify the owner must be using the homestead for a primary residence but that should be found to be a strained interpretation of legislative intent. In order to establish the right to have a cartway laid off the property owner now only has to show that the land is being used or actions are being taken preparatory to one or more of the listed uses and that there is no public road or "reasonable deeded or documented easement or right of way" leading to the property. The new provisions of this section spell out the manner in which an existing railroad crossing is to be treated and provides that new crossings shall not be established without agreement of the railroad while requiring the railroad to negotiate in "good faith". An important change to this section provides that a "permissive use of a right of way or easement across the land of another shall not be a bar to the establishment of a cartway under this Article" but requires the jury on view to give priority to the previously used path. The damages provisions of the old statute are untouched but the width of the cartway to be laid off has been changed from a minimum of eighteen feet to "not more than 18 feet of travel surface or such other minimum width requested in the petition and found necessary and proper by the court, and not more than 30 feet in width fro cut, fills, and ditches or cableway, chutes and flumes".

G.S. 138-70 had provided for a five year limit on the cartway unless otherwise petitioned for and ordered. Now it will not terminate until the time petitioned for and found necessary and proper by the court.

The Bill as enacted provides that compensation to the landowner for the establishment of a cartway shall be as provided in Chapter 40A Article 4 (Condemnation). It also provides as follows: "Sec. 4. This act is effective upon ratification but sections 2 and 3 shall expire on July 1, 1997. This act applies to actions to establish cartways filled on or after the effective date, but before July 1, 1997." This imposes a sunset on most of the amendments but also creates a question of whether by its terms the statute will be in effect at all after 1997. If the sunset provisions are repealed this ambiguity will be corrected.

In conclusion, these amendments provide an excellent opportunity to clear up nagging access problems for homeowners if they can meet the statutory requirements. It is to be hoped that the sunset provisions will be repealed as well as consideration being given to substituting the word "residence" for "homestead" and to the possibility of eliminating the acreage limitation on such residences in order to reflect the all too common situation where lots have been deeded to persons on the interior of a tract but no access granted.

Summary Administration - Senate Bill 244

New Article 28 of Chapter 28A becomes effective January 1, 1996 and applies to estates of decedents dying on or after that date.

The act can be utilized when the surviving spouse is (1) the sole devisee or heir or (2) if the decedent died partially intestate, the sole devisee and heir. The procedure is not available if the decedent’s will says the procedure is not available or if the devise to the spouse is in trust. The procedure is effected by the spouse filing a petition under G.S. 28A-28-2 and the entry of an order by the clerk that no further administration is necessary. G.S. 28A-28-3. After entry of the order, the spouse may convey, sell, lease or mortgage real property devised to or inherited by the spouse at public or private sale and on such terms as the spouse determines. G.S. 28A-28-4(b). Specifically, G.S. 28A-17-12, pertaining to conveyances by heirs and devisees and validity against creditors and personal representatives, does not apply. As a result, by statute, the spouse must assume liability for (1) all debts not discharged by death and (2) taxes and valid claims against the decedent, to the extent of the value of property received. G.S. 28A-28-6.

G.S. 28A-28-7 says that the above does not preclude appointment of a "P.R." or collector. But it would seem that a transfer of title under G.S. 28A-28-4(b) prior to the appointment would be valid.

The Uniform Statutory Rule Against Perpetuities - Senate Bill 83

This act is effective October 1, 1995. See G.S. 41-15 through G.S. 41-22. It is a lengthy piece of legislation only highlighted here. It supersedes the common law rule. G.S. 41-22. It applies to a "nonvested property interest", a "general power of appointment," a "nongeneral power of appointment" and a "general testamentary power of appointment." A nonvested property interest or general power of appointment (not presently exercisable because of a condition precedent) or a nongeneral power of appointment or a general testamentary power of appointment is invalid unless (1) when the nonvested interest is created it is certain to vest or terminate no later than 21 years after the death of an individual then alive or when the general power is created, the condition precedent is certain to be satisfied or become impossible to satisfy no later than 21 years after such a death or when the nongeneral power or general testamentary power is created it is certain to be irrevocably exercised or otherwise terminate no later than 21 years after the death of an individual then alive; or (2) the nonvested interest either vests or terminates, or the condition precedent in a general power either is satisfied or becomes impossible to satisfy, or the nongeneral power or general testamentary power is irrevocably exercised or otherwise terminates, within 90 years of its creation. G.S. 41-15.

The possibility that a child will be born to an individual after the individual’s death is disregarded. G.S. 41-15(d).

Regarding "reformation," G.S. 41-17 states that, upon petition, a court shall reform a disposition in the manner that most closely approximates the transferor’s plan of distribution and is within the 90 year statutory period if: "(1) A nonvested property interest or a power of appointment becomes invalid under G.S. 41-15; (2) A class gift is not invalid under G.S. 41-15, but might become invalid under G.S. 41-15, and the time has arrived when the share of any class is to take effect in possession or enjoyment; or (3) A nonvested property interest that is not validated by G.S. 41-15(a)(1) can vest but not within 90 years after its creation."

G.S. 41-18 contains a long list of exceptions from the rule in G.S. 41-15 which should be consulted.

Regarding prospective application, G.S. 41-19 states: "(a) Except as extended by subsection (b) of this section, this Article applies to a nonvested property interest or a power of appointment that is created on or after October 1, 1995. For purposes of this section, a nonvested property interest or a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable. (b) If a nonvested property interest or a power of appointment was created prior to October 1, 1995, and is determined in a judicial proceeding, commenced on or after October 1, 1995, to violate this State’s rule against perpetuities as that rule existed before October 1, 1995, a court upon the petition of an interested person may reform the disposition in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created."

Options In Gross And Other Interests In Land - Senate Bill 84

Senate Bill 84 becomes effective October 1, 1995 and pertains to interests created on or after that date. G.S. 41-33.

An "option in gross" or a "preemptive right" (defined in G.S. 41-28(2) and (3) to mean an option or right where the holder does not own any leasehold or other interest in the land) becomes invalid if not exercised within 30 years after its creation. G.S. 41-29.

A lease to commence in the future becomes invalid if its term does not actually commence in possession within 30 years after its execution. G.S. 41-30.

A "nonvested easement in gross" (defined in G.S. 41-28(1)) becomes invalid if it does not vest within 30 years after its creation.

A possibility of reverter, right of entry or executory interest becomes invalid as set out in G.S. 41-32 and the preceding fee simple becomes a fee simple absolute if: "the right to vest in possession of the possibility of reverter, right of entry, or executory interest depends on an event or events affecting the use of land and if the possibility of reverter, right of entry, or executory interest does not vest in possession within 60 years after its creation."

G.S. 41-32 does not apply to charitable or governmental interests excluded from Senate Bill 83 discussed above.

G.S. 41-29, G.S. 41-30 and G.S. 41-32 do not apply to arrangements relating solely to an interest in oil, gas or minerals.

G.S. 50-21(a); G.S. 50-20(c1); G.S. 50-2(i1); - House Bills 272 and 273

The changes to G.S. 50-21(a) and G.S. 50-20(c1) apply to actions filed on or after October 1, 1995. The change to G.S. 50-20(i1) applies to actions pending on or filed after that date. Deleted from G.S. 50-21(a) is the statement that [in most cases] a judgment for equitable distribution cannot be entered before entry of decree for absolute divorce. G.S. 50-20(i1) provides for pre-final equitable distribution judgment declaration of what is separate and marital property and property division. G.S. 50-20(c1) says that a second or subsequent spouse acquires no interest in marital property of his (her) spouse from a former marriage until a final determination of equitable distribution is made in the marital property of the spouse’s former marriage. But purchasers and encumbrancers are protected by the rule of lis pendens in G.S. 50-20(h).