An easement is a non-possessory right of use over the land of another. An easement holder has the right to use the landowner's property for a designated purpose and is prohibited from changing or expanding his use of the easement without the consent of the landowner.
Depending on the benefit it bestows, an easement may be either appurtenant or in gross. Easements appurtenant are favored under the law.
A non-exclusive easement in gross does not give the easement holder the sole privilege of using the easement. Therefore, there is no presumption that the easement holder has the right of apportionment. The easement holder must prove that at the time the easement was created, the grantor's intent was to give him the right of apportionment.
Express Easements – An express easement is created by deed or other written instrument which sets forth the location and dimensions of the easement as well as its permissible use. If an express easement is vague or ambiguous, Virginia courts will examine the facts and circumstances surrounding the transaction to ascertain the intent of the parties.
Implied Easements – An implied easement may be found where the facts and circumstances surrounding a transaction demonstrate that the parties intended such a result. Virginia law recognizes two types of implied easements:
An easement by prescription will be found upon a showing that the claimant's use of the land over which he claims the easement has been exclusive, continuous, uninterrupted, adverse and under claim of right for a period of twenty years and that such use was with the knowledge and acquiescence of the true owner of the land. Where the claimant's use of the land in question has been open, visible, and unmolested for the twenty year prescriptive period, there is a presumption that the use is under claim of right.
Easement issues arise for a variety of reasons. Some of the most common easement disputes involve:
Anyone involved in a real estate dispute should hire an experienced real estate attorney. A real estate attorney will review the deeds, surveys, title search, and other relevant documents and will offer his legal opinion of the case. A real estate attorney often represents clients involved in easement disputes in settlement negotiations and at trial.