Right-of-Way
1. What is right-of-way?
Right-of-way is a legal right to cross another's property. It is usually granted in the form of a permanent lineal strip of land established by a survey.
2. Who gives right-of-way?
Right-of-way is dedicated (given) by the owner, usually for road construction. It may also be used for utilities such as water, sewer, gas, power, drainage, telephone, and cable. Right-of-way dedication is found in deeds and on plats; however, for it to become public, it must also be accepted by a public agency. Right-of-way may also be acquired through condemnation.
3. How does right-of-way differ from an easement?
Right-of-way is a specific form of easement. An easement is usually given across land for a singular purpose, such as a utility line. An easement for ingress and egress (the right to travel) may be permanent, but is often temporary, such as in a construction access easement. The property owner may remove an easement if the user has no legal claim. Right-of-way removal is somewhat more difficult. Right-of-way is often used for utility placement, but utility easements may not be used for public vehicular or pedestrian use. Right-of-way dedication is always made on a deed or plat, while an easement may be written, verbal, or implied.
4. Is dedication all that is required?
No, before the right-of-way can be public, in addition to dedication, it must be accepted by a public agency (city or State). At this point, maintenance becomes the agency's responsibility. Subdivisions of land that include a dedication of right-of-way to a public entity (NCDOT or municipality) require subdivision review by the Planning Department.
5. What is a "paper street"?
This is a dedicated but unopened right-of-way in which no road was constructed. It is usually found in residential developments where there was once an intention to extend a road. A paper street may exist indefinitely unless it is abandoned by legal process.
6. What is meant by "ditch to ditch"?
This informal term used by the North Carolina Department of Transportation (NCDOT) refers to a public road where little or no formal right-of-way was ever dedicated or where right-of-way was acquired but documentation was never recorded. In these cases, the State maintains only the area between the side drainage ditches. Many of the older State roads fall in this category.
7. Who maintains the right-of-way?
Public right-of-way is maintained by a city or the State. Private right-of-way may be maintained by a developer, a homeowner's association, or, in the absence of these, by the road users. In this case, unless there is an obligation in the form of a contract or stated in deed restrictions, users are not bound to road maintenance.
8. What is a street disclosure statement?
Under North Carolina law, a developer who conveys property must provide the buyer with an instrument disclosing whether the right-of-way on which the property fronts is public or private. If public, the right-of-way and the roads thereon must meet NCDOT standards. If private, it must be stated who will maintain the streets and that NCDOT will not maintain them.
9. What is the State's minimum right-of-way width?
The NCDOT requires 45 feet for local subdivision roads. Collector roads require 50 feet; five lane highways require 80 feet and cul-de-sacs must have a 50 foot right of way radius.
10. What permission is required to use State right-of-way?
Incidental use, such as yard maintenance, is naturally allowed; however, permission is required to place signs, posts, mailboxes, driveway cuts, culverts, utilities, or structures.
11. What is the NCDOT policy on right-of-way acceptance?
Subdivision roads with right-of-way that was dedicated, recorded, or approved by a County Board after September 30, 1975, may not be added to the State road system unless the road meets minimum NCDOT right-of-way, grade, alignment, construction, and paving standards. There must also be at least two (2) occupied homes per 1/10 mile. Roads less than 2/10 of a mile must have four (4) homes.
12. Can an owner be denied access to a tract of land isolated with no recorded right-of-way?
Yes, although in other cases an easement may be allowed. Disposition in these matters is often left up to the courts.
13. What are minimum right-of-way requirements for obtaining home mortgage loans?
Lending institutions require road maintenance agreements before approving loans for property on private streets. Veteran's Administration (VA) loans require direct access to public streets. There is no general rule, however, regarding minimum right-of-way.
14. What must be done if one discovers that, by mistake, a road was built outside of a dedicated right-of-way?
The road may remain in its place by prescription over a period of time. Any party with a legal interest in the road may relocate it at its expense. The injured party may also file an action against the developer if he can be located.
*The information provided herein above is not intended to be legal advice. The information is general in nature and may not be accurate or applicable in regard to certain circumstances. Please consult an attorney for information and advice on specific situations.
