Virginia Easement Law

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.

How Easements Are Created in VA

Depending on the benefit it bestows, an easement may be either appurtenant or in gross. Easements appurtenant are favored under the law.

• Easements Appurtenant – An easement appurtenant benefits an adjoining parcel of land regardless of who owns that land. Therefore, if the dominant estate (the land which benefits from the easement) is sold or inherited, the easement is not terminated. The land which is burdened by the easement is known as the servient estate.
• Easements In Gross – An easement in gross is a personal right which benefits a specific individual. Under Virginia law, an easement in gross may be either exclusive or non-exclusive. An exclusive easement in gross gives the easement holder the right to divide the easement so as to produce independent uses or operations. This is known as the right of apportionment.

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:

1. Easements By Implication From Preexisting Use To establish an easement by implication from preexisting use, a claimant must prove that the use of the property over which he claims the easement has been continuous, apparent, reasonably necessary for the enjoyment of the dominant estate, and in existence at the time of the conveyance.
2. Easements By Necessity – Several elements must be shown in order to establish an easement by necessity:

• That there was unity of ownership between the dominant and servient estates followed by a severance;
• That the severance gave rise to the need for the easement; and
• That there is a reasonable need for the easement.

Easement By Prescription

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 and Property Boundary Disputes

Easement issues arise for a variety of reasons. Some of the most common easement disputes involve:

• Misuse;
• Interference;
• Abandonment;
• Trespass;
• Termination; and
• Merger.

Help from a Real Estate Attorney in Virginia

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.