## Facts

- In September 1969, Ray A. Warren and Hazel Warren granted Scenic Views, Inc. a recorded 30-foot access easement across the Warrens’ land in Watauga County, North Carolina.
- The easement instrument required Scenic Views (and successors) to impose legally binding restrictions on the benefited property limiting it to residential use and banning “trailers, trailer park, campground, shacks, or outside toilets.”
- The instrument stated that if any condition was violated, “this instrument shall be void” and the Warrens (or successors) “may re-enter and take possession” of the access route.
- David Clyde later acquired the servient estate (the Warrens’ former property burdened by the easement).
- Norbert F. Goode and Myra V. Mayse later acquired the dominant estate (the property benefited by the easement).
- Clyde asserted, and for summary-judgment purposes Howell did not dispute, that Goode and Mayse violated the easement conditions by raising goats for commercial purposes and placing a trailer on the benefited property.
- Clyde told Goode and Mayse the easement was terminated and then locked gates at each end of the access route; no written termination was recorded.
- Raymond P. Howell later purchased the dominant estate (recording his deed in June 1995). The parties disputed whether Howell had notice, before purchase, that Clyde claimed the easement had been terminated.
- Howell sued Clyde seeking a declaratory judgment construing the easement and an order preventing Clyde from blocking access.
- The trial court granted summary judgment for Howell, reasoning that any termination was ineffective against Howell because it was not recorded under N.C. Gen. Stat. § 47-18.

## Issues

1. Whether North Carolina’s recording statute, N.C. Gen. Stat. § 47-18, requires recordation of the termination of a defeasible easement for the termination to be effective against a later purchaser of the dominant estate.
2. Whether the trial court properly granted summary judgment to Howell based solely on the absence of a recorded termination.

## Decision

- The North Carolina Court of Appeals reversed the summary judgment for Howell and remanded.
- The court held that § 47-18 does not require a termination of a defeasible easement to be recorded to be effective against a subsequent purchaser.
- The court concluded the recording statute addresses priority against unrecorded instruments that create or convey interests, not the end of an interest that terminates under the terms of the recorded grant.
- Because the trial court’s ruling rested on an incorrect view of the recording statute, summary judgment for Howell could not stand.

## Legal Principles

- An easement may be defeasible where the creating instrument provides that, upon breach of stated conditions, the easement becomes void and the grantor (or successors) may retake the access route.
- A determinable easement can end automatically upon the happening of the stated event (such as violation of the use conditions), without a separate termination instrument.
- If the easement is instead subject to a condition subsequent, the servient owner’s exercise of the reserved right of re-entry or taking possession after breach can effect termination.
- N.C. Gen. Stat. § 47-18 protects purchasers against prior unrecorded conveyances or grants of interests in land; it does not impose a general requirement that terminations of defeasible interests be recorded.
- Recording a grant gives notice of the interest as created, but recordation does not keep an interest alive after it has ended under the terms of the recorded instrument.

## Conclusion

The Court of Appeals held that North Carolina’s recording statute does not require an easement termination to be recorded, even as against a later purchaser of the dominant estate; because the trial court granted summary judgment for Howell based only on the lack of a recorded termination, the appellate court reversed and remanded for further proceedings on whether the easement had in fact been terminated under its terms.


Howell v. Clyde, 493 S.E.2d 323 (1997)