If you own property in Virginia, especially Northern Virginia, chances are that there may be an easement on your property. Virginia property law regarding easements is historical in nature, and over the course of many hundreds of years, our statutes have codified the historical common laws as to easement use and land ownership rights.
This blog covers the top 5 things to know about easements in Virginia. Generally, legal disputes over easements are very fact-sensitive, which means that court decisions as to enforcing – or, in some cases, terminating – the easement, will depend on the facts. Was the easement enforceable? Properly recorded? Does the easement unreasonably interfere with your neighbor’s property rights?
Virginia Easement Laws
1. What is an Easement?
An easement is a right to use another owner’s land for a specific purpose or a right to demand another owner from using his land for a specific purpose. If you own an easement, you only own the right to enforce it, not the actual ownership of that person’s land.
2. In Gross v. Appurtenant Easement
All easements are either appurtenant to land or in gross. An easement in gross is one that is personal to the individual, instead of running with the estate, and as such, an easement in gross can be deeded or bequeathed (by will) to the beneficiary of the easement in gross. For example, conservation easements are commonly easements in gross so the benefactor of a conservation easement may have a personal easement to use your land for conservation purposes, and all successive heirs or subsequent owners may be bound by that conservation easement.
3. Negative v. Affirmative Easement
A negative easement under Virginia property law, is known as a servitude. If you own the dominant parcel of land, you have the legal right to object to any use by the servient tract owner that would interfere with your easement.
An affirmative easement gives you a right to use another person’s land for a specific reason. If you are the owner of an affirmative easement, you have the right to demand that the owner of the servient tract, the tract being burdened, be disallowed to do whatever the owner would otherwise permitted to do. The owner of an affirmative easement possesses the dominant tract.
4. Who Can Enforce an Easement in Virginia?
Under Section 55-50.1 of the 1950 Code of Virginia, as amended, both the owner being benefited by the easement (“the dominant estate”) and the landowner of the estate being burdened (“the servient estate”) have a legal right to enforce a use that would unreasonably interfere with the purpose of the easement and that would not be a permitted use contemplated by the original grant of the easement. In Virginia, easements are subject to Title 55, Property and Conveyances, of the 1950 Code of Virginia.
5. How to Research if there is an Easement on Your Property
Easements are usually recorded with the land records division of the county or city clerk’s office. In Fairfax, Loudoun and Prince William, the Circuit Court Clerk’s Office, Land Records, is responsible for recording easements. You can view your property plat maps by reviewing the files in Land Records. However, some easements may not be recorded, such as those created by adverse possession. Adverse possession in Virginia is very difficult to prove, since courts generally require continuous use, open and notorious use, and exclusive use for a statutory period, and such proof must rise to the level of clear and convincing evidence.
Do you have any questions about easements on your property? We’d love to hear from you.
If you’re looking for an experienced real estate lawyer in Fairfax, Virginia, then contact Keithley Law, PLLC, PLLC today by calling (703) 454-5147 and schedule an initial consultation in our Fairfax office.
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