In North Carolina, a (father), the original landowner in 2007 subdivided a small plot from his property, right at 1 acres and conveyed it by deed to his son-n-law and daughter. The plot is located behind his property and at the time of conveyance would have been landlocked, so he extended and connected a new driveway from his driveway which provided access via his driveway leading to the main state road. An E911 address was issued, building permits were issued, power and telephone was ran to the property and a modular home was purchased and the land and home secured the mortgaged deed of trust.
The land and home was foreclosed, the modular purchased and moved and subsequently I purchased the land. The father tells me that I have permission/easement to use his driveway and that in fact he originally provided easement to the mortgage company, but it was not apparently recorded.
My questions are if any of the following explanations apply:
1). Even though the easement was not recorded, since the father by his own hand created the new driveway and connected it to his own, did he create an easement appurtenant by voluntarily making himself a servient estate, which in the State of N.C. automatically passes the implied driveway easement with the land when it is sold, whether the easement is recorded or not?
or
2). Did he create an “Implied Right of Way, An Easement by Necessity” since at the time of severance from his land the subdivided plot was/became landlocked by his conveyance from common ownership? After all, he knew the land had no access and by extending the driveway and access via his own driveway, he provided an implied easement out of necessity.
While the driveway easement that was constructed and is used today to access the land is not recorded, another deeded but unusable right of way exists via only a proposed and totally undeveloped road that is nothing more than a path and “the proposed road” was actually non-existent when the property was originally conveyed by the father and remains undeveloped today. It is nothing more than a path and although this right of way exists it could not be used for any type of access then and it remains unusable today, is of no value or benefit and will mostly likely never be constructed to provide any benefit.
Am I wrong in my thinking that the (father) voluntarily made himself a servient landowner when he created and extended from his own driveway and that he also freely created an easement out of necessity since he knew the property would otherwise be landlocked unless he provided ingress and egress across his property and his connecting driveway?
The land and home was foreclosed, the modular purchased and moved and subsequently I purchased the land. The father tells me that I have permission/easement to use his driveway and that in fact he originally provided easement to the mortgage company, but it was not apparently recorded.
My questions are if any of the following explanations apply:
1). Even though the easement was not recorded, since the father by his own hand created the new driveway and connected it to his own, did he create an easement appurtenant by voluntarily making himself a servient estate, which in the State of N.C. automatically passes the implied driveway easement with the land when it is sold, whether the easement is recorded or not?
or
2). Did he create an “Implied Right of Way, An Easement by Necessity” since at the time of severance from his land the subdivided plot was/became landlocked by his conveyance from common ownership? After all, he knew the land had no access and by extending the driveway and access via his own driveway, he provided an implied easement out of necessity.
While the driveway easement that was constructed and is used today to access the land is not recorded, another deeded but unusable right of way exists via only a proposed and totally undeveloped road that is nothing more than a path and “the proposed road” was actually non-existent when the property was originally conveyed by the father and remains undeveloped today. It is nothing more than a path and although this right of way exists it could not be used for any type of access then and it remains unusable today, is of no value or benefit and will mostly likely never be constructed to provide any benefit.
Am I wrong in my thinking that the (father) voluntarily made himself a servient landowner when he created and extended from his own driveway and that he also freely created an easement out of necessity since he knew the property would otherwise be landlocked unless he provided ingress and egress across his property and his connecting driveway?
Creation: Easements Implied by Necessity or Easement Appurtenant
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