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North Carolina Supreme Court Gives Easement Holders 20 Years to Challenge Encroachments

On August 19, 2016, the North Carolina Supreme Court issued a decision that will benefit all companies that own easements. Patrolling easements and clearing them of vegetation and structures can be very costly, but the Supreme Court’s recent decision in Duke Energy Carolinas, LLC v. Herbert A. Gray, et al., creates the potential for enormous cost savings with respect to both easement maintenance and associated legal expenses.

The Court of Appeals previously held that a six-year statute of limitation applied to easement claims. See Pottle v. Link, 187 N.C. App. 746, 654 S.E.2d 64 (2007). The burden that decision placed on easement holders – of identifying and removing all encroachments within six years – was substantial. For companies with large easement networks, protecting their easement rights under Pottle effectively required constant monitoring and sometimes even clear-cutting of all vegetation.

Attorneys, however, successfully persuaded the Supreme Court to overrule Pottle, and obtained a decision in which the Supreme Court unequivocally held that easement holders have 20 years within which to file suit for the removal of any encroachment on its easement.

Though the Supreme Court’s decision provides added protection for all easement holders, and particularly for companies that rely on large networks of easements, easement holders still should diligently protect their easement rights. Best practices include conducting regular patrols of all easements, maintenance of clear easement boundaries, and routine monitoring of building activities near easement boundaries. Easement holders should also be aware that the six-year statute of limitation may still apply to claims for damages related to encroachments.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume VI, Number 309


About this Author

Meredith J. McKee, Womble Carlyle Law Firm, Business Litigation Attorney

As a partner in the firm’s Business Litigation group, Meredith represents corporations and individuals in North Carolina’s state and federal courts.  Although Meredith handles a wide variety of matters, she has deep experience in these areas:

  • State and federal class actions.  Meredith has extensive experience with all aspects of class action defense in the consumer context, including: fighting class actions through early dispositive motions; defeating class certification in state and federal courts; positioning cases for victory on the...
Debbie Harden, Womble Carlyle Law Firm, Business Litigation Attorney

Debbie has more than 30 years of experience as a business litigator and trusted legal advisor.  In addition to counseling on corporate, governance and fiduciary matters, Debbie has a broad-based litigation practice in state and federal courts including The North Carolina Business Court.  She has been recognized by The Best Lawyers in America© in five litigation categories Commercial Litigation, Litigation – Banking and Finance, Litigation - ERISA, Litigation – Mergers and Acquisitions and Litigation – Trusts and Estates.  Best Lawyers in America© also recognized Debbie as the “2013 Trust and Estates Lawyer of the Year” for Charlotte and the 2014 and 2015 "ERISA Litigation Lawyer of the Year” for Charlotte.   Other recognitions include Chambers USA in Litigation as well as the North Carolina Super Lawyer in Business Litigation and Martindale AV rating.

Jackson Price, Womble Carlyle Law Firm, Business Litigation Attorney

Jackson is a skilled litigator that represents and advises individuals and businesses in a wide range of complex legal matters, focusing both on white collar criminal defense and general business litigation.  Jackson is an efficient and effective advocate with experience trying cases in state and federal courts across the country.  He has also handled a variety of appellate matters and has argued before the North Carolina Supreme Court.

Jackson’s clients include life science and biotechnology companies, health care organizations, hospitals, energy companies, and local governments. ...