South Carolina Easement Law: Creation, Transfer, and Termination

In South Carolina, easement law lets one person use another person’s land for a specific purpose — crossing it to reach a road, running a utility line, draining water — without owning the land. An easement can be created by a written agreement, implied from the circumstances of a property sale, or earned through 20 years of open use without permission. Once it exists, it binds future owners of the burdened land, has a scope that cannot be unilaterally expanded or narrowed, and ends only through specific legal events. Most of the rules come from South Carolina court decisions rather than a single statute, with the Statute of Frauds, Title 27 of the state code, and the Eminent Domain Procedure Act filling in the written pieces.

The Three Ways an Easement Is Created

By Written Agreement (Express Easements)

An express easement is a written grant from the landowner (the grantor) to the person receiving the right (the grantee). South Carolina’s Statute of Frauds requires any agreement involving an interest in land to be in writing and signed.¹ The document should identify where the easement runs, what it can be used for, and whether it has an end date. It can stand alone or sit inside a deed.

Record it with the county Register of Deeds. An unrecorded easement may still bind the two original parties, but a later buyer of the burdened land who had no knowledge of it is generally not bound. In Hardin v. Greenville Water System, an unrecorded easement was held unenforceable against a purchaser who lacked notice.²

Express easements can be affirmative (letting the holder do something on the land) or negative (stopping the landowner from doing something that would interfere with the holder’s rights).

By Implication

An implied easement arises without a written agreement when the circumstances of a property division make one necessary. South Carolina recognizes two kinds.

An easement by necessity comes into being when an owner sells off part of a parcel and the sale leaves one piece with no legal way to reach a public road. The landlocked owner must show that the two parcels were once owned together, that ownership was later split, and that access across the neighboring parcel is genuinely necessary. In Kennedy v. Bedenbaugh, the South Carolina Supreme Court emphasized that the landlocked parcel and the proposed servient parcel must have shared a common owner at some point.³ Inconvenience is not enough; access must be truly necessary.

An easement by prior use arises when, before splitting the property, the owner was already using one part to benefit another in a way that was visible, continuous, and reasonably necessary. A dirt road that a seller had been driving across the back parcel to reach the front parcel for years, plainly visible to the buyer at closing, can support an implied easement even though the deed said nothing about it.

By 20 Years of Adverse Use (Prescriptive Easements)

A prescriptive easement is earned through long-term use of someone else’s land without permission. South Carolina courts require the use to be open, continuous, and adverse for a full 20 years. That is longer than the 10-year adverse possession period in Section 15-67-210, and the reward is smaller: a prescriptive easement grants only the right to continue the specific use, not ownership of the land.⁴

To succeed, the claimant must show by clear and convincing evidence that the use was:

Open and visible, so the landowner had a chance to see it and object.
Continuous for 20 years, meaning reasonably regular for the type of use, not necessarily daily.
Without permission from the landowner, either spoken or written.

In Jones v. Daley, the South Carolina Court of Appeals recognized a prescriptive easement for ingress and egress where the claimant had used a path across neighboring property in Jasper County for decades to reach her own land.⁵

If you want to stop a prescriptive easement from forming across your land, the strongest move is written permission. Permission removes the “adverse” element and resets the clock. Posting no-trespassing signs or filing a lawsuit to stop the use before the 20 years run also works.

What Each Side Can and Can’t Do

The holder of an easement (the dominant estate) has the right to use it for its intended purpose without interference. The owner of the burdened land (the servient estate) keeps title and full ownership but cannot block the easement or make it unreasonably difficult to use. Most fights are about what “intended purpose” means.

Scope is fixed by the easement’s written terms, or, for non-written easements, by the nature of the use that created them. An easement granted for foot traffic does not automatically become a driveway. In Myrtle Beach Lumber Co. v. Willoughby, the South Carolina Supreme Court held that an easement holder cannot expand the use beyond what was granted.⁶ The rule cuts both ways. In Smith v. Commissioners of Public Works, a court ruled that neither party could unilaterally relocate or change the dimensions of an easement.⁷

Both sides share responsibility for maintenance. Where several properties share a road easement, courts typically divide the cost among the users, and if the parties never wrote down a maintenance agreement a court can allocate costs by proportional use.

If someone obstructs your easement, you can go to court for an order requiring the obstruction removed. South Carolina courts have granted injunctive relief and money damages in these disputes, and have awarded nominal damages to recognize the legal right even where physical harm is small.

How Easements Transfer

Whether an easement moves with the land depends on which type it is.

An easement appurtenant benefits a particular parcel. It transfers automatically when that parcel is sold: the new owner of the dominant estate inherits the same rights, and the new owner of the servient estate inherits the same burden. No separate transfer document is needed.

An easement in gross benefits a specific person or entity rather than a parcel. Utility easements are the common example. These usually do not transfer to a new holder unless the original agreement expressly allows assignment; when the agreement is silent, courts are unlikely to presume transferability.

Modifying an easement takes agreement from both estates, in writing, recorded with the county Register of Deeds. Neither side can change it alone. The reasoning in Myrtle Beach Lumber Co. v. Willoughby that bars a holder from expanding the scope also bars the servient owner from narrowing it.⁶

How Easements End

Easements are not automatically permanent. South Carolina recognizes several ways they can terminate.

Merger. When the same person becomes the owner of both the dominant and servient estates, the easement disappears. Courts have held it does not automatically revive if the properties are later separated and sold.
Release. The holder can formally give up the easement through a written deed of release, which must be recorded with the county Register of Deeds.⁸
Abandonment. Simple nonuse, even for many years, does not by itself end an easement. South Carolina courts require clear evidence of intent to give it up permanently, typically shown through physical acts like building over the easement area or erecting barriers, combined with long nonuse.
Prescription by the servient owner. Just as an easement can be created by adverse use, it can be extinguished when the burdened owner obstructs it continuously for the prescriptive period. South Carolina case law is not fully settled on whether that period is 20 years (matching easement creation) or 10 years (matching adverse possession). The safer assumption is 20 years.
End of necessity. An easement by necessity ends when the necessity ends. If a new public road reaches a formerly landlocked parcel, the easement across the neighbor is no longer justified.
Changed conditions. When circumstances have shifted so dramatically that the easement’s purpose can no longer be served, a court may terminate or reform it. This argument shows up most often with conservation easements after surrounding land has been developed.

If there is a real dispute about whether an easement is over, expect to need a court order to formally extinguish it. A landowner who simply acts as though the easement is gone risks a lawsuit for interference.

When the Government or a Utility Takes an Easement

Not every easement is voluntary. South Carolina’s Eminent Domain Procedure Act, in Title 28, Chapter 2, is the exclusive process by which a government entity or authorized utility can take a property interest for a public purpose.⁹ Utility line easements, highway rights-of-way, and drainage easements often come through this route.

Before filing, the condemning authority must appraise the property, share the appraisal with you, and try in good faith to negotiate a price. If that fails, it files a Condemnation Notice stating what it considers just compensation. You have 30 days to accept or reject; not responding counts as rejection.

If you reject the offer, the case proceeds to either a jury trial or an appraisal panel, whichever the condemnor selected. The condemnor can deposit its offered amount with the court and take possession of the easement while the compensation fight continues.

South Carolina law protects landowners on litigation costs. If the court finds the condemnor had no right to take your property, you recover your reasonable litigation expenses. If you prevail at trial and the final award is closer to your appraiser’s valuation than the condemnor’s, you can apply within 15 days of judgment for attorney fees and expert witness costs. If the condemnor abandons or withdraws the case, you are entitled to reasonable attorney fees and costs.¹⁰

Conservation Easements and the State Tax Credit

South Carolina’s Conservation Easement Act, in Title 27, Chapter 8, governs voluntary easements that permanently restrict development to protect natural, scenic, or agricultural land.⁸ The general creation and recording rules apply, but the tax treatment is different.

Under the South Carolina Conservation Incentives Act at Section 12-6-3515, a landowner who donates a qualifying conservation easement can claim a state income tax credit equal to 25% of the donation’s appraised value. The credit is capped at $250 per acre and cannot exceed $52,500 in any single tax year.¹¹ The donation must also qualify for a federal charitable deduction to be eligible for the state credit.

Separately, agricultural or forest land within a right-of-way easement granted to a public body, railroad, or utility can qualify for a reduced property tax assessment if the right-of-way is at least 30 feet wide. You apply to the county tax assessor with documentation of the easement’s existence, location, and acreage.¹²

What It Costs to Create an Easement

A formal easement takes more than a signature. A professional land survey to describe the boundaries usually runs from several hundred dollars to over $2,000, depending on the property’s size, terrain, and whether flood zone analysis is involved. Attorney drafting or review adds to that.

Recording fees vary by county. Charleston County, for example, charges $25 to record an easement document and $15 to record a deed, plus transfer taxes based on property value. Notary fees are capped by state law at $5 per signature.¹³ Check with your county’s Register of Deeds for its current schedule.

Skipping the survey or the attorney review is where most easement problems start. Vague location language produces boundary fights years later, and thin scope language invites the kind of litigation that costs many multiples of what the professional work would have.

1
Justia. South Carolina Code Title 32 Chapter 3 – Statute of Frauds
2
Justia. Hardin v. Greenville Water System (2007)
3
The State of South Carolina. Kennedy v. Bedenbaugh
4
South Carolina Legislature. South Carolina Code of Laws Title 15 Chapter 67 – Limitations on Actions for Recovery of Real Property
5
The State of South Carolina. Jones v. Daley
6
Justia. Myrtle Beach Lumber Co. v. Willoughby (1981)
7
Justia. Smith v. Commissioners of Public Works (1994)
8
South Carolina Legislature. South Carolina Code Section 27-8-30 (2025) – Conservation Easements Generally; Creation, Duration and Effect; Conveyances
9
South Carolina Legislature. South Carolina Code of Laws – The Eminent Domain Procedure Act
10
South Carolina Legislature. South Carolina Code Section 28-2-510 – Award of Costs and Litigation Expenses
11
South Carolina Legislature. South Carolina Code Section 12-6-3515 (2025) – Credit for Conservation Contributions
12
South Carolina Legislature. South Carolina Code of Laws Title 12 Chapter 43 – County Equalization and Reassessment
13
South Carolina Legislature. South Carolina Code Section 26-1-100 (2025) – Fees for Notary Acts