GSNC

§ 47B-1. Declaration of policy and statement of purpose.

It is hereby declared as a matter of public policy by the General Assembly of the State of North Carolina that:

Land is a basic resource of the people of the State of North Carolina and should be made freely alienable and marketable so far as is practicable.
Nonpossessory interests in real property, obsolete restrictions and technical defects in titles which have been placed on the real property records at remote times in the past often constitute unreasonable restraints on the alienation and marketability of real property.
Such interests and defects are prolific producers of litigation to clear and quiet titles which cause delays in real property transactions and fetter the marketability of real property.
Real property transfers should be possible with economy and expediency. The status and security of recorded real property titles should be determinable from an examination of recent records only.
It is the purpose of the General Assembly of the State of North Carolina to provide that if a person claims title to real property under a chain of record title for 30 years, and no other person has filed a notice of any claim of interest in the real property during the 30-year period, then all conflicting claims based upon any title transaction prior to the 30-year period shall be extinguished.

History. 1973, c. 255, s. 1.

Legal Periodicals.

For survey of 1976 caselaw on property, see 55 N.C.L. Rev. 1069 (1977).

For article, “The North Carolina Historic Preservation and Conservation Agreements Act: Assessment and Implications for Historic Preservation,” see 11 N.C. Cent. L.J. 362 (1980).

For article, “The Battle to Preserve North Carolina’s Estuarine Marshes: The 1985 Legislations, Private Claims to Estuarine Marshes, Denial of Permits to Fill, and the Public Trust,” see 64 N.C.L. Rev. 565 (1986).

For article, “Torrens Title in North Carolina-Maybe a Hundred Years Is Long Enough,” see 39 Campbell L. Rev. 271 (2017).

CASE NOTES

Purpose. —

This Chapter was enacted in an effort to expedite the alienation and marketability of real property. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

Applicability. —

Marketable Title Act does not authorize a cause of action where parties are under a contractual obligation to pay fees pursuant to contract. Wilner v. Cedars of Chapel Hill, LLC, 241 N.C. App. 389, 773 S.E.2d 333, 2015 N.C. App. LEXIS 444 (2015).

This Chapter does not affect the presumption in favor of the State set forth in G.S. 146-79 , relating to land controversies wherein the State is a party. Taylor v. Johnston, 289 N.C. 690 , 224 S.E.2d 567, 1976 N.C. LEXIS 1373 (1976).

Extinguishment of Reverter Right. —

Exception under G.S. 47B-3(6) to the extinguishment of rights after a 30-year period set forth in the Real Property Marketable Title Act in 1973 did not apply to the purported property interests of landowners that had property adjacent to the railroad’s right of way and who claimed to have a possibility of a reverter to the right of way, and any right of reverter was properly considered as extinguished. King Assocs., LLP v. Bechtler Dev. Corp., 179 N.C. App. 88, 632 S.E.2d 243, 2006 N.C. App. LEXIS 1627 (2006).

Town’s breach of contract claim against landowners for proposing to close a hospital built on land the town granted failed because, inter alia, the landowners had held the land for more than the 30 year period during which a challenge to the landowners’ title could be brought. Town of Belhaven v. Pantego Creek, LLC, 250 N.C. App. 459, 793 S.E.2d 711, 2016 N.C. App. LEXIS 1164 (2016).

Possession of Real Property by Town. —

Town’s paving of an alley, maintenance of the utilities underneath the alley, and provision of municipal services to the alley were sufficient to establish actual possession of the alley; the fact that the town accepted dedication of the alley via use and control necessarily led to the conclusion that the town was in open and actual possession of the road and its interest in the alley could not be defeated by the North Carolina Marketable Title Act, G.S. 47B-1 et seq. Kraft v. Town of Mt. Olive, 183 N.C. App. 415, 645 S.E.2d 132, 2007 N.C. App. LEXIS 1096 (2007).

§ 47B-2. Marketable record title to estate in real property; 30-year unbroken chain of title of record; effect of marketable title.

Any person having the legal capacity to own real property in this State, who, alone or together with his predecessors in title, shall have been vested with any estate in real property of record for 30 years or more, shall have a marketable record title to such estate in real property.
A person has an estate in real property of record for 30 years or more when the public records disclose a title transaction affecting the title to the real property which has been of record for not less than 30 years purporting to create such estate either in:
1. The person claiming such estate; or
2. Some other person from whom, by one or more title transactions, such estate has passed to the person claiming such estate;
  with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed.
Subject to the matters stated in G.S. 47B-3 , such marketable record title shall be free and clear of all rights, estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to such 30-year period. All such rights, estates, interests, claims or charges, however denominated, whether such rights, estates, interests, claims or charges are or appear to be held or asserted by a person sui juris or under a disability, whether such person is natural or corporate, or is private or governmental, are hereby declared to be null and void.
In every action for the recovery of real property, to quiet title, or to recover damages for trespass, the establishment of a marketable record title in any person pursuant to this statute shall be prima facie evidence that such person owns title to the real property described in his record chain of title.

History. 1973, c. 255, s. 1; c. 881; 1981, c. 682, s. 11.

Legal Periodicals.

CASE NOTES

This section makes marketable record title subject to the matters stated in G.S. 47B-3 . Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

What Constitutes Marketable Title. —

Under this Chapter, if a person or those under whom he claims has a record title to real property of at least 30 years duration and there is nothing of record which by a title search of that chain would show a defect in the title, such a person has a marketable title in the property. Heath v. Turner, 58 N.C. App. 708, 294 S.E.2d 392, 1982 N.C. App. LEXIS 2822 (1982), rev'd, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

In order to prove title to land under the Real Property Marketable Title Act, defendant had to establish: (1) that defendant, alone or together with his predecessors in title, was vested with an estate in real property which had been of record for at least thirty years; (2) the public record showed a title transaction at least thirty years old which purported to vest title in defendant or some other person from whom, by one or more title transactions, the property had passed to defendant; and (3) that nothing appeared of record to divest defendant of the estate. Beam v. Kerlee, 120 N.C. App. 203, 461 S.E.2d 911, 1995 N.C. App. LEXIS 742 (1995), cert. denied, 342 N.C. 651 , 467 S.E.2d 703, 1996 N.C. LEXIS 95 (1996).

Establishing Title. —

In order to establish title under the Real Property Marketable Title Act, a person must establish that (1) he alone or together with his predecessors in title, was vested with an estate in real property which had been of record for at least 30 years; (2) the public record showed a title transaction at least 30 years old which purported to vest title in him or some other person from whom, by one or more title transactions, the property had passed to him; and (3) that nothing appeared of record to divest him of that estate. Haw River Land & Timber v. Lawyers Title Ins., 152 F.3d 275, 1998 U.S. App. LEXIS 16948 (4th Cir. 1998).

Trial court erred by applying G.S. 47B-3(3) in action to quiet title and by granting a directed verdict in favor of the defendant possessor where the claimants established prima facie ownership by presenting exhibits of plats showing their respective chains of title of more than 30 years from a grantor. The fact that the defendant was in fact in possession was not enough to resolve the factual dispute as the burden shifted to the defendant to defeat the plaintiffs’ claims. Hill v. Taylor, 174 N.C. App. 415, 621 S.E.2d 284, 2005 N.C. App. LEXIS 2474 (2005).

In a case in which the State of North Carolina sought a declaratory judgment that it owned a 45-mile segment of the riverbed of the Yadkin River in North Carolina that, over the past 100 years, a power company purportedly acquired by deed and developed, the federal district court properly concluded the company proved its title to 99% of the relevant segment’s riverbed under the Marketable Title Act (MTA). The district court found and North Carolina conceded that the company demonstrated satisfaction of its burden of proof under the statutory requirements of the MTA. North Carolina v. Alcoa Power Generating, 853 F.3d 140, 2017 U.S. App. LEXIS 5691 (4th Cir. 2017), modified, 2017 U.S. App. LEXIS 8226 (4th Cir. Apr. 3, 2017), cert. denied, 138 S. Ct. 981, 200 L. Ed. 2d 248, 2018 U.S. LEXIS 1371 (2018).

District court properly found that the company had title to a 45-mile segment of the riverbed that it had purportedly acquired by deed and developed because the record supported the district court’s treatment of the relevant segment as a single segment, North Carolina did not obtain title to the riverbeds of the relevant segment by virtue of sovereignty because the relevant segment was not navigable at statehood, the company proved its title to 99% of the relevant segment’s riverbed under North Carolina’s Real Property Marketable Title Act and no exception applied, and the company proved title to the remaining one percent under adverse possession. North Carolina v. Alcoa Power Generating, Inc., 2017 U.S. App. LEXIS 8226 (4th Cir. Apr. 3, 2017), cert. denied, 138 S. Ct. 981, 200 L. Ed. 2d 248, 2018 U.S. LEXIS 1371 (2018).

Effect of Subsection (c). —

Under subsection (c) of this section, a person is divested of his interest where it depends on a title transaction that occurred prior to the 30-year period. Heath v. Turner, 58 N.C. App. 708, 294 S.E.2d 392, 1982 N.C. App. LEXIS 2822 (1982), rev'd, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

§ 47B-3. Exceptions.

Such marketable record title shall not affect or extinguish the following rights:

Rights, estates, interests, claims or charges disclosed by and defects inherent in the muniments of title of which such 30-year chain of record title is formed, provided, however, that a general reference in any of such muniments to rights, estates, interests, claims or charges created prior to such 30-year period shall not be sufficient to preserve them unless specific identification by reference to book and page of record be made therein to a recorded title transaction which imposed, transferred or continued such rights, estates, interests, claims or charges.
Rights, estates, interests, claims or charges preserved by the filing of a proper notice in accordance with the provisions of G.S. 47B-4 .
Rights, estates, interests, claims or charges of any person who is in present, actual and open possession of the real property so long as such person is in such possession.
Rights of any person who likewise has a marketable record title as defined in G.S. 47B-2 and who is listed as the owner of such real property on the tax books of the county in which the real property is located at the time that marketability is to be established.
Rights of any owners of mineral rights.
Rights-of-way of any railroad company (irrespective of nature of its title or interest therein whether fee, easement, or other quality) and all real estate other than right-of-way property of a railroad company in actual use for railroad purposes or being held or retained for prospective future use for railroad operational purposes. The use by any railroad company or the holding for future use of any part of a particular tract or parcel of right-of-way or non-right-of-way property shall preserve the interest of the railway company in the whole of such particular tract or parcel. Operational use is defined as railroad use requiring proximity and access to railroad tracts. Nothing in this section shall be construed as repealing G.S. 1-44.1 .
Rights, interests, or servitudes in the nature of easements, rights-of-way or terminal facilities of any railroad (company or corporation) obtained by the terms of its charter or through any other congressional or legislative grant not otherwise extinguished.
Rights of any person who has an easement or interest in the nature of an easement, whether recorded or unrecorded and whether possessory or nonpossessory, when such easement or interest in the nature of an easement is for any one of the following purposes:
1. Flowage, flooding or impounding of water, provided that the watercourse or body of water, which such easement or interest in the nature of an easement serves, continues to exist.
2. Placing and maintaining lines, pipes, cables, conduits or other appurtenances which are either aboveground, underground or on the surface and which are useful in the operation of any water, gas, natural gas, petroleum products, or electric generation, transmission or distribution system, or any sewage collection or disposal system, or any telephone, telegraph or other communications system, or any surface water drainage or disposal system whether or not the existence of the same is clearly observable by physical evidence of its use.
3. Conserving land or water areas pursuant to a conservation agreement or preserving a structure or site pursuant to a preservation agreement under Article 4 of Chapter 121 of the General Statutes.
Rights, titles or interests of the United States to the extent that the extinguishment of such rights, titles or interest is prohibited by the laws of the United States.
Rights, estates, interests, claims or charges created subsequent to the beginning of such 30-year period.
Deeds of trust, mortgages and security instruments or security agreements duly recorded and not otherwise unenforceable.
Rights, estates, interests, claims or charges with respect to any real property registered under the Torrens Law as provided by Chapter 43 of the General Statutes of North Carolina.
Covenants applicable to a general or uniform scheme of development which restrict the property to residential use only, provided said covenants are otherwise enforceable. The excepted covenant may restrict the property to multi-family or single-family residential use or simply to residential use. Restrictive covenants other than those mentioned herein which limit the property to residential use only are not excepted from the provisions of Chapter 47B.

History. 1973, c. 255, s. 1; 1995, c. 443, s. 3.

Legal Periodicals.

For note discussing effect of exceptions to the 30-year limitation, see 52 N.C.L. Rev. 211 (1973).

For survey of 1976 caselaw on property, see 55 N.C.L. Rev. 1069 (1977).

For article, “The North Carolina Historic Preservation and Conservation Agreements Act: Assessment and Implications for Historic Preservation,” see 11 N.C. Cent. L.J. 362 (1980).

CASE NOTES

G.S. 47B-2 makes marketable record title subject to the matters stated in this section. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

Section Serves to Protect Against Extinguishment of Certain Rights. —

The exceptions listed under this section do not serve as a sword to establish title in the party claiming a marketable title under the act, but instead serve as a shield to protect from extinguishment the rights therein excepted. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

Enumeration of exceptions in this section does not determine priority of one exception over the other. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

There is no requirement that a person in possession of property hold it by adverse possession in order for his title to be perfected under this Chapter. Heath v. Turner, 58 N.C. App. 708, 294 S.E.2d 392, 1982 N.C. App. LEXIS 2822 (1982), rev'd, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

Effect of Defendants’ Possession on Rights of Ownership. —

Whatever rights the defendants have because they are in possession of property are not taken away by a competing marketable record title, but the mere fact of possession by the defendants does not alone establish their ownership of the land. Possession only protects whatever ownership the defendants already have on the date that marketability is to be determined. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

Title Acquired by Adverse Possession Protected. —

Where the defendants had acquired title to an undivided interest by adverse possession when the action was filed, their possession of the property on the date that marketability was to be determined (the date the action was filed) protected their rights as owners of the undivided interest. Thus, even if the plaintiffs had a marketable record title on that date under this Chapter, it could not affect or extinguish the defendants’ title previously acquired by adverse possession because that title was an interest protected by subdivision (3) of this section. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

Title Acquired by Town Through Dedication. —

Defendants’ Right as Cotenants Protected. —

Possession by defendants on the crucial date would not give defendants title as to the plaintiffs’ undivided interest in the property, but their right to possession of the property as cotenants, prior to partition or sale, would be protected, under the general rule that each cotenant has the right to enter upon the land and to enjoy it jointly with the other cotenants. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

Covenant Restricting Property to Residential Use. —

Trial court properly entered a declaratory judgment holding that only the first covenant in a subdivision’s restrictive covenants — restricting the properties to residential use — survived under the Marketable Title Act and that the remaining challenged covenants were extinguished because the challenged exception applied only to covenants applicable to a general or uniform scheme of development that either restricted the property to residential use only, or more narrowly restricted the property to multi-family or single-family residential use only, and the parties conceded that all of the challenged covenants were applicable to a general or uniform scheme of development. C Invs. 2, LLC v. Auger, 277 N.C. App. 420, 860 S.E.2d 295, 2021- NCCOA-209, 2021 N.C. App. LEXIS 217 (2021), cert. denied, 2022 N.C. LEXIS 486 (N.C. May 4, 2022).

Reverter Interest in a Railroad Right-of-Way. —

Exception under G.S. 47B-3(6) to the extinguishment of rights after a 30-year period set forth in the Real Property Marketable Title Act in 1973 did not apply to the purported property interests of landowners that had property adjacent to the railroad’s right of way and who claimed to have a possibility of a reverter to the right of way. King Assocs., LLP v. Bechtler Dev. Corp., 179 N.C. App. 88, 632 S.E.2d 243, 2006 N.C. App. LEXIS 1627 (2006).

Where plaintiff and defendant both base their claims on recorded titles, each dating back more than 30 years, and defendant has been in possession for more than 30 years, plaintiff’s record title does not affect defendant’s marketable title. Heath v. Turner, 58 N.C. App. 708, 294 S.E.2d 392, 1982 N.C. App. LEXIS 2822 (1982), rev'd, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

Subdivision (10) is similar, though not identical, to § 2(d) of the Model Marketable Title Act. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

Possession Protects “Interest” or “Estate” and “Right” to Possession. —

Defendants’ possession of the property at the time of commencement of the lawsuit protects, as against a competing marketable title, both their “interest” or “estate” in the property, that is, the undivided interest, and their “right” to possession of the property, but does not give them any title which they do not already have. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

Vested remainder is a “right,” “estate,” “interest” and “claim” under subdivision (10) of this section. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

The “beginning of the 30-year period” in subdivision (10) of this section is the date of the title transaction purporting to create the interest claimed by the defendants, upon which they rely as the basis for the marketability of their title, and which was the most recent title transaction as of a date 30 years prior to the time when marketability is to be determined. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

Competing Title Not Extinguished If Created by Transaction Recorded After Beginning of Period. —

Even though a party establishes a marketable record title to the property in question, it cannot extinguish a competing independent title if that competing title is created by a title transaction recorded after the beginning date for the establishment of the marketable record title. Heath v. Turner, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

No Exceptions Applied. —

Person in Possession Exception. —

Defendant and her family had been continuously using the gravel road since 1966 that plaintiffs blocked in 2018, and thus the court held that defendant’s private easement rights in the portion of road on plaintiffs’ lot had not been extinguished by operation of the Marketable Title Act based on the exception under N.C. Gen. Stat. § 47B-3(3), which provided that the Act would not affect or extinguish interests of any person who was in present, actual and open possession of the real property. Craig v. Neal, 2021-NCCOA-450, 279 N.C. App. 148, 864 S.E.2d 802, 2021- NCCOA-450, 2021 N.C. App. LEXIS 469 (2021).

§ 47B-4. Preservation by notice; contents; recording; indexing.

Any person claiming a right, estate, interest or charge which would be extinguished by this Chapter may preserve the same by registering within such 30-year period a notice in writing, duly acknowledged, in the office of the register of deeds for the county in which the real property is situated, setting forth the nature of such claim, which notice shall have the effect of preserving such claim for a period of not longer than 30 years after registering the same unless again registered as required herein. No disability or lack of knowledge of any kind on the part of any person shall delay the commencement of or suspend the running of said 30-year period. Such notice may be registered by the claimant or by any other person acting on behalf of any claimant who is
1. Under a disability;
2. Unable to assert a claim on his behalf; or
3. One of a class, but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.
To be effective and to be entitled to registration, such notice shall contain an accurate and full description of all real property affected by such notice, which description shall be set forth in particular terms and not be by general reference; but if such claim is founded upon a recorded instrument, then the description in such notice may be the same as that contained in the recorded instrument. Such notice shall also contain the name of any record owner of the real property at the time the notice is registered and a statement of the claim showing the nature, description and extent of such claim. The register of deeds of each county shall accept all such notices presented to him which are duly acknowledged and certified for recordation and shall enter and record full copies thereof in the same way that deeds and other instruments are recorded, and each register of deeds shall be entitled to charge the same fees for the recording thereof as are charged for the recording of deeds. In indexing such notices in his office each register of deeds shall enter such notices under the grantee indexes of deeds under the names of persons on whose behalf such notices are executed and registered and under the grantor indexes of deeds under the names of the record owners of the possessory estates in the real property to be affected against whom the claim is to be preserved at the time of the registration.

History. 1973, c. 255, s. 1.

§ 47B-5. Extension of time for registering notice of claims which Chapter would otherwise bar.

If the 30-year period specified in this Chapter shall have expired prior to October 1, 1973, no right, estate, interest, claim or charge shall be barred by G.S. 47B-2 until October 1, 1976, and any right, estate, interest, claim or charge that would otherwise be barred by G.S. 47B-2 may be preserved and kept effective by the registration of a notice of claim as set forth in G.S. 47B-4 of this Chapter prior to October 1, 1976.

History. 1973, c. 255, s. 1.

§ 47B-6. Registering false claim.

No person shall use the privilege of registering notices hereunder for the purpose of asserting false or fictitious claims to real property; and in any action relating thereto if the court shall find that any person has intentionally registered a false or fictitious claim, the court may award to the prevailing party all costs incurred by him in such action, including a reasonable attorney’s fee, and in addition thereto may award to the prevailing party treble the damages that he may have sustained as a result of the registration of such notice of claim.

History. 1973, c. 255, s. 1.

§ 47B-7. Limitations of actions and recording acts.

Nothing contained in this Chapter shall be construed to extend the period for the bringing of an action or for the doing of any other required act under the statutes of limitations, nor, except as herein specifically provided, to affect the operation of any statutes governing the effect of the registering or the failure to register any instrument affecting real property.

History. 1973, c. 255, s. 1.

§ 47B-8. Definitions.

As used in this Chapter:

The term “person” denotes singular or plural, natural or corporate, private or governmental, including the State and any political subdivision or agency thereof, and a partnership, unincorporated association, or other entity capable of owning an interest in real property.
The term “title transaction” means any transaction affecting title to any interest in real property, including but not limited to title by will or descent, title by tax deed, or by trustee’s, referee’s, commissioner’s, guardian’s, executor’s, administrator’s, or sheriff’s deed, contract, lease or reservation, or judgment or order of any court, as well as warranty deed, quitclaim deed, or mortgage.

History. 1973, c. 255, s. 1.

CASE NOTES

Taking a vested remainder in fee by descent with possession postponed constitutes a “title transaction.” Heath v. Turner, 58 N.C. App. 708, 294 S.E.2d 392, 1982 N.C. App. LEXIS 2822 (1982), rev'd, 309 N.C. 483 , 308 S.E.2d 244, 1983 N.C. LEXIS 1432 (1983).

§ 47B-9. Chapter to be liberally construed.

This Chapter shall be liberally construed to effect the legislative purpose of simplifying and facilitating real property title transactions by allowing persons to rely on a record chain of title of 30 years as described in G.S. 47B-2 , subject only to such limitations as appear in G.S. 47B-3 .

History. 1973, c. 255, s. 1.