County or local ordinances typically mandate that property owners be prohibited from building within certain minimum distances of your building. For example, a three-foot setback line means that you can’t build within three feet of the setback line.
Utility and Drainage Easements
Most homeowners are subject to utility and drainage easements. Pursuant to Section 55-50.2 of the 1950 Code of Virginia, utility easements “run with the land” or run with the servient tract of land. This means that if you have a utility easement, your land is the servient tract. When you sell your home, the next owner (and all future owners in the chain of title) would be subject to permitting the utility company to access the servient tract to use the easement as well. A utility company includes energy, telecommunications, water and sewage. If you don’t believe your land is subject to a utility easement, check your land records.
What are Historic Preservation Easements?
Also known as “conservation easements,” a historic or preservation easement is an easement that was created to preserve your land or a piece of your land for historic or conservation purposes. Typically, property owners donate their land to local governments or non-profit conservation groups as part of a land trust in exchange for some tax benefit as a charitable gift. Conservation easements also “run with the land” and as such, all future owners are subject to the easement. These types of easements are generally intended to preserve the historic or natural aspects of your property as part of a broader scheme or development. In Virginia, the Virginia Board of Historic Resources\ is statutorily authorized to establish and administer these easements.
To Types of Easements
Easements can be created in several ways, including easements by specific express grant, by prescription, by estoppel or by implication, according to the landmark case of Bunn v. Offutt, 216 Va. 681, 684 (1976). How are Easements Created?
- To create an express easement, you must grant or reserve the easement in a deed or other written, legal instrument conveying property. It can also be created by incorporation by reference through “dedication” in a development or subdivision plan. In this case, the general rules of contract formation and contract enforcement apply, as opposed to property law only. If an easement is expressly created by reservation or grant without any limitations, the owner of such easement may use it for any reasonable purpose, so long as that future use does not additionally burden the servient estate.
- Easement by estoppel is created when a landowner represents that an easement exists, and by making these representations, the landowner is “estopped” from denying that a valid easement exists.
- An easement by prescription is one where an easement was created by adverse possession. In Virginia, a prescriptive easement is valid if the use was exclusive, uninterrupted, adverse, permitted, and known to be used by the servient estate owner for at least twenty years.
- An easement by implication is one that is not recorded or expressly conveyed but created based on prior use that is reasonably necessary for the purpose of the property conveyed, which purpose existed at the time conveyed. As such, to fully enjoy the property purchased, an implied easement exists if the easement was reasonably necessary for the use and enjoyment of the homeowner’s land (the “dominant estate”). An easement by necessity is a type of implied easement that exists if an owner of the dominant estate can prove that to enjoy his land, the implied easement was reasonably necessary.
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