North Dakota has still not decided whether a plat labelled “Access Easement” creates one
North Dakota has still not decided whether a plat labelled “Access Easement” creates one
2026-09-15 · North Dakota · Courts
Shared driveways, access strips and common lanes drawn on a subdivision plat are how a great many North Dakota developments handle access — and the state's Supreme Court has now confirmed it does not know whether the plat alone creates the right. Tamm v. Gatzke, 2025 ND 141, decided July 31, 2025, affirmed in part, reversed in part and remanded a dispute over strips labelled “Access Easement” on a 1993 plat that split one River Road parcel into three tracts.1
No association was involved — it is neighbour against neighbour, out of Burleigh County, with Justice McEvers writing. It is nonetheless the most consequential North Dakota property decision of the period for anyone who owns in a platted development, because the mechanism at issue is the one subdivisions use.
What the court held, and what it pointedly did not
The core paragraph:
“Whether Roberts' recording of the 1993 plat, which has delineated areas on Tracts 1-B and 3-B labeled 'Access Easement,' created easements for the benefit of Tract 2-B requires factual determinations. Tamm acknowledges that the plat itself is 'ambiguous as to the identity of the dominant tenement.' … Assuming without deciding the act of recording a plat referencing an 'Access Easement' can create an easement, genuine issues of material fact remain as to whether Roberts owned all three tracts at the time of recording the plat, precluding an express easement, and whether Roberts intended upon making Tract 2-B the dominant tenement.” (¶18)
“Assuming without deciding” is the whole story. Dismissal on the pleadings was error, so the claim goes to trial — but summary judgment for the claimant was also correctly denied, because the plat does not say who the easement benefits.
The fallback theories are no easier
Where the plat itself does not settle it, an owner falls back on an implied easement or an easement by necessity. The court restated both standards, and both are hard:
“'A party seeking an implied easement has the burden of proving the existence of the easement by clear and convincing evidence.' … An easement implied from pre-existing use requires apparent, permanent, and continuous use.” (¶21)
“'[A]n easement by necessity will not be implied "if the claimant can obtain a means of access to his land at reasonable expense" or "if the claimant has another mode of access to his land, however inconvenient…"' … 'The burden of proving that an alternative mode of access is not available is on the person claiming the easement by necessity.'” (¶22)
“However inconvenient” is the phrase that defeats most necessity claims. An awkward second route is still a route.
Why this matters inside a platted community
Three situations recur in North Dakota developments, and Tamm bears on all of them.
The shared driveway between two lots. Where the plat shows an access strip and nothing else — no separate recorded easement, no declaration provision — neither owner can be confident who holds the right until a court decides. That is a title problem, and it is a problem at resale.
The private lane an association maintains. An association assessing owners for maintenance of a lane shown only as a plat notation is spending money on something whose legal character is unsettled. The declaration usually fixes this. Where it does not, the plat may not.
The outlot or common area never conveyed. If the developer platted an access area for the benefit of lots but never deeded it and never wrote the easement into the declaration, Tamm says the question of who benefits is a fact question requiring trial.
The ownership point at ¶18 is the sharpest of them. If the developer owned all the affected tracts when the plat was recorded, an express easement may be precluded — you cannot grant yourself an easement over your own land. That is the ordinary posture of a subdivision at platting.
What a board or a buyer should do about it
Check whether the declaration grants the access right, not just the plat. A declaration that expressly creates cross-access easements over the lanes, drives and common areas is the cure. Most modern North Dakota declarations do this; older ones frequently rely on the plat.
Where it does not, fix it by agreement before it is a dispute. A recorded easement agreement signed by the affected owners is cheaper than the trial Tamm was remanded for.
Treat it as a resale disclosure item. Under North Dakota's new disclosure statute a seller must hand a buyer the declaration, amendments, supplemental declarations and rules. An access arrangement that lives only on a plat is exactly the sort of thing a buyer's counsel will ask about, and the packet will not answer it. Our North Dakota estoppel and resale page covers the packet.
Do not assume a recorded plat is a recorded easement. That is the assumption Tamm declined to validate.
What to watch next
Watch for the remand and any subsequent appeal, which is where North Dakota might finally answer whether recording a plat referencing an “Access Easement” creates one. Until then this is an open question of state law, and an owner or board relying on a plat notation is relying on something no North Dakota court has confirmed works.
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