Understanding Right of Way Laws in the Commonwealth of Virginia

Your Right of Way Explained

To have a right of way over property means to have an easement over the property. An easement is an interest in land owned by another that entitles its holder to a restricted use of that land for a specific purpose. The most common reason for granting a right of way easement is to allow passage over the land to a public road or other land owned by the easement holder. Such easements are normally expressed in recorded deeds and are either "appurtenant" or "in gross." An appurtenant easement "runs with" the land; it is typically used for ingress and egress and requires two pieces of land, a benefited tenement and a burdened tenement. For example, if you have an easement over my land and I have an easement over your land, we both share a mutually beneficial relationship. Easements in gross, however, are personal to the holder and require only a single parcel . Such easements are typically used for the benefit of companies, the government or the public. A right of way easement grants a landowner the right to cross over another person’s property to get to public roads or their own property. The main question in all "right of way" legal issues is the extent to which the easement can be used. This is determined by the language granting or reserving the easement. Absent contrary language, courts always presume a right of way easement is "subject to" its use being reasonable and not a source of annoyance. Actual use must be reasonable, meaning not to the annoyance of any owner of any property," and the "essential character" of the right of way must be preserved "so that it is still suitable for the [original] user." Absent evidence that the use is either unreasonable or subversive to the original purpose, any expansion is usually found acceptable.

Virginia Right of Way Law

The legal framework for property right of way in Virginia is predominantly governed by statutory law, common law principles, and relevant caselaw. This section of the article will outline some of the key laws and cases that have shaped the understanding and enforcement of right of way in the state.
In Virginia, the statutory framework for right of way can be found in Title 33.2 of the Code of Virginia, entitled "Highways and Other Surface Transportation Systems." Section 33.2-101 defines the terms relevant to this area of law, such as "highway," "road," "street," and "divided highway." It also codifies the definition of an "adjoining landowner," the relevant entity when discussing property right of way issues, especially with respect to issues concerning compensation and damages. Respective authorities, departments and entities are also defined in Section 33.2-100 ("Definitions") to have a better understanding of who is authorized and responsible for handling different matters relating to right of way issues. Issues of access, likewise, are governed by statutory law in Virginia, specifically in Section 33.2-310 ("Right of access is property right—Limitation on acquisition of property to provide additional access—Violations"). More information related to this can be found in Section 33.2-313 ("Reimbursement or purchase of subdivided property—Condemnation and exercise of right of eminent domain not prohibited—Viability of remainder."). With respect to cases of actual injury caused by an interfering party, Virginia’s right of way statute includes Section 33.2-207 ("Relocation assistance payments"). In Virginia, specific statutes concern the determination of compensation owed to individuals displaced as part of the project; see Section 33.2-417 ("Just compensation to owner of real property required to relocate"), among other relevant statutes. Alabama v. North Carolina, 130 S. Ct. 2171, 2176 (2010). Virginia also recognizes that a property right is subject to the rights of the state in making a public use of the property. The scope of the right is measured by the state’s authority to take private property for public use by eminent domain. Jones v. Atkinson, 275 Va. 340, 652 S.E.2d 799, 804 (2007). In Virginia, a right of access to one’s land from a public thoroughfare is its own property right. And while that right of access may be taken away, it also requires compensation. Virginia DOT v. E. Shore RR Co., 241 Va. 531, 536, 403 S.E.2d 325, 327 (1991). Under Virginia law, an adjoining landowner who discovers a foreign substance on his property has the right to either bring forth a trespass claim against the substance’s owner or move the foreign substance off his property. In fact, a property owner may even dispose of the foreign substance if it would otherwise be too dangerous to keep on the property. Szewczyk v. Thomson, 2013 Va. Cir. LEXIS 3, at *5-6 (Va. Cir. Ct. Mar. 5, 2013) (citing Richmond Protective Prods. Co. v. Swenson & Associates, Inc., 246 Va. 221, 430 S.E.2d 468 (1993)).

Virginia Right of Way Types

There are several types of right of way, and each is treated differently under the law. Right of way can be either public or private, and each is distinct in how it is used and who pays for its upkeep.
Private Right of Way
The simplest type of right of way is a private right of way. A private right of way is essentially a road or path that a specific person or group of people is allowed to use or pass across. Private right of ways are typically found on gated estates or similar settings. A private right of way cannot be used by just anyone; it must be listed somewhere that the road or path is reserved for an identified group or individual. Prime examples of this are roads listed on a deed that say they are private, or areas with a gate that can only be opened by someone with authorization to enter the estate.
Public Right of Way
At the other end of the spectrum is a public right of way. A public right of way belongs to the general public and is not owned by any one individual. Roads or paths granted public right of way are typically well maintained and are free to anyone who wishes to use them. Public right of way is maintained by local, state, or federal government authorities. Public right of way is funded through the revenue generated by the municipality or state, which receives money from taxes levied on residents. In most cases, this means that all residents who reside within the boundaries of the jurisdiction maintain right of way regardless of whether they use it regularly or not.
Easements
A right of way is also known as an easement, which is a type of encumbrance or grant of permission that allows one party to use a portion of the land owned by another. In Virginia, easements can be implied, prescriptive, or express, which are described below:
Implied Easements
An implied easement is a grant of the right to use a given portion of a property for a specific purpose. Implied easements qualify as easement by necessity and easement by prior use. Implied easements are established by the actions or behavior of the people utilizing it.
Express Easements
An express easement is a type of easement that is explicitly listed on a property deed or other legal document. Most often, express easements are found on the deed for a property at the time of sale or transfer. An express easement is typically used to indicate that an easement is a written agreement as opposed to an implied easement, which is an unwritten agreement.
Prescriptive Easements
A prescriptive easement grants someone the right to use an easement for a specific purpose. A prescriptive easement is most often used for property rights, including roads, paths, and other forms of right of way. A prescriptive easement is granted when someone establishes dominion over a path or road and uses it without objection by a property owner.

How Right of Way Is Granted

In Virginia, the law sets forth several avenues by which a property right of way can be established. First, a recorded deed establishing the right of way granted by the grantor to the grantee pursuant to a specific effectuation of the grant. Alternatively, a right of way may also be established by a contractual agreement between the parties. Such agreements may generally be contained in a recorded deed but may also be found in other written documents. A court order expressly creating a right of way may also be established by operation of law in the event of a court order granting such an order. The statutory provision establishing the right of way provides for a general purpose for which a right of way may be established and that a court may order such a right of way for the benefit of either party.

Disputes Regarding Right of Way

Common scenarios where such rights of way disputes (known in Virginia law as common law "easements") arise include: When disputes do arise, there are a variety of legal processes available to resolve them. Mediation is an effective means of early (short-circuit) resolution, particularly when the parties are represented by counsel. Indeed, many easement disputes can be resolved at the preliminary hearing stage of the eminent domain process known as the vesting order. Simple arbitration also can be utilized, but is less common. Pursuit of remedies in the state court system often are called pro se , meaning "as a party representing one’s own case". A pro se action is permitted by a party in Virginia with respect to such disputes as trespass, boundary line, easement or other real estate matters. Parties also may bring suit through the Federal District Courts, although the United States Supreme Court only may be invoked under very limited circumstances, involving federal laws created by Congress. Most states recognize a statute of limitations with respect to such pending disputes. In Virginia, individuals have 25 years to initiate a lawsuit from the date that the action arose. Any lawsuit brought after the 25 year period expires will be barred by the statute of limitations.

Does Right of Way Impact Property Value?

While a right of way may barely impact the value of a piece of property, there are circumstances in which the security or desirability of a body of water may dramatically increase or decrease the value of real estate in Virginia. For instance, a parcel of land with twenty acres of prime waterfront could be worth millions of dollars but if that parcel had an easement through the center or across one side of the property, the value could drop significantly. On the other hand, if the easement is for a public roadway and leads to tourist destinations such as wineries or beaches, the value may be a premium.
Landlocked parcels are often worth less than those with water access because even if the owner of the inaccessible property installs a private road to attach to a public right of way, they will still have to pay for the construction of that road. That could run tens or hundreds of thousands of dollars, and it could take many years to get permission from your neighbors to build that road. If the alternate route to public streets is a good distance, then it can also be inconvenient for travel to school, work, and other daily responsibilities.
On the other side of the spectrum, propelling a more positive note, a right of way with a well-traveled path can bolster track homes. A home in a new development can be as much as 10% more valuable if they have access to a well-maintained right of way that links to restaurants and retail centers. When considering putting your property on the market, take into account the proximity of right of ways. Does your prospective buyer need to be on the road every day for work? If so, then that right of way could be an essential selling point of your house.

Termination or Alteration of Right of Way

Suppose you hold a right of way and over the years, you decide that the use of the right of way has changed to the point where it now serves no useful purpose. Maybe there is a new road that supersedes the old one. In that case, Virginia property law allows a property owner to petition for either a modification of the right of way or even terminate it. An existing right of way may be modified or terminated by the owner of the property over which the right of way runs in two ways: • Voluntary termination: If the owner of the property over which a right of way runs intends to voluntarily terminate the right of way, after at least twenty-five years from the date it was created, the property owner must record a statement of such intent with the circuit court in the jurisdiction where the property is located. The statement will take effect thirty days after it is recorded, unless the statement is issued within the last thirty days of the period in which the right of way is created . In such case, the statement takes effect thirty days after the last day of that period. The owner of the servient tenement or his agent must give at least five days’ notice of his intention to end the right of way, and it is subject to any other legal requirements. • Involuntary termination: A right of way can also be terminated when it is abandoned. Abandonment can occur when the owner of the servient tenement fails to use the right of way or where the use of the right of way has been obstructed and the obstruction has continued for twenty-five years or longer without sure of resumption of the easement. Courts have decided that a right of way can be terminated where the original owner of the dominant estate no longer needed the easement and had not exercised it in over 20 years. The termination must be instituted using an in rem action by the property owner, who has standing to do so, in the circuit court in the jurisdiction where the property is located. The right of way can be terminated by the court if it finds that there has been abandonment.