North Carolina § 41-31 - Nonvested easements.

§ 41-31. Nonvested easements.

A nonvested easement in gross becomes invalid if it does not actually vest within 30 years after its creation. History (1995, c. 525, s. 1.) COMMENTARY This section places a 30-year limit on the time during which a nonvested easement in gross can remain nonvested. An easement is nonvested if the right of utilization is subject to a condition precedent, i.e., if the right of utilization is conditioned upon the happening of a specified future event. An easement is in gross if it has a servient estate but no dominant estate; an easement in gross is a personal interest in the land of another. The difficulty of locating the owner of a nonvested easement in gross as time goes along is the principal reason for limiting to 30 years the time during which the easement can remain nonvested. Whether or not an easement is vested depends on whether the holder has the current right to utilize it. Thus, an easement can be vested even if the holder has not actually utilized it. If, however, the easement holder has actually utilized the easement, the easement is vested by definition. For example, an easement to transmit electric power across land from a power plant would be vested, if it had not previously vested, when the holder of the easement commenced to install power transmission lines on the land; vesting would not be delayed until power is actually transmitted through those lines. This section does not limit the duration of a vested easement, nor does it affect an easement that is vested subject to a defeasance clause that may cause it to terminate. Nor does this section affect multiple floating easements, which are also called single expansible easements with multiple potential routes, because they are vested. E.g., Kleinheider v. Phillips Pipe Line Co., 528 F.2d 837, 843-44 (8th Cir. 1975). Exemption from Rule Against Perpetuities. Because nonvested easements in gross are governed by a 30-year time limit, they are exempted from the Statutory Rule Against Perpetuities by G.S. 41-18(9). This reverses the rule at common law, under which nonvested easements were subjected to the common-law Rule Against Perpetuities and rendered invalid ab initio if they were not certain to vest or terminate within a life in being plus 21 years. J. Gray, The Rule Against Perpetuities §§ 314-16 (4th ed. 1942); L. Simes & A. Smith, The Law of Future Interests § 1248 (2d ed. 1956). Legal Periodicals. - For article, "Perpetuities Reform in North Carolina: The Uniform Statutory Rule Against Perpetuities, Nondonative Transfers, and Honorary Trusts," see 74 N.C.L. Rev. 1783 (1996).