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.

Womble Carlyle, 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.

The full opinion is available here.