Easements and Rights of Way in Virginia: What Property Owners Need to Know

The information in this article is for general informational purposes only and does not constitute legal advice. Laws change and individual circumstances vary. Consult a licensed Virginia attorney about your specific situation. Reading this article does not create an attorney-client relationship nor does merely contacting our office through this website or any other means.

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Easements are one of the most common sources of real estate disputes in Virginia. They arise between neighbors over driveways and footpaths, between landowners and utility companies over power lines and pipelines, between rural property owners over access roads, and between developers and adjacent landowners over stormwater drainage. They are frequently misunderstood, often not fully disclosed at closing, and sometimes not discovered until a buyer has already taken ownership.

Understanding what an easement is, how it is created, what rights it conveys, and how it can be challenged or ended is essential for any property owner — whether you are the one holding the easement or the one whose land it burdens.

What an Easement Is

An easement is a legal right to use another person’s land for a specific, limited purpose. The land that is burdened by the easement is called the servient estate or servient tenement. The land or person that benefits from the easement is the dominant estate or dominant tenement.

An easement is not ownership — the easement holder does not own the land they have the right to use. They have a right to use it for the defined purpose only. The underlying landowner retains ownership and can use the land in any way that does not interfere with the easement holder’s rights.

A right of way is a type of easement — specifically, the right to travel across another’s land. The term is often used interchangeably with easement in the context of access and road use. Public rights of way are different: they are highways and roads dedicated to public use and maintained by government entities.

Easements Appurtenant vs. Easements in Gross

Easements appurtenant run with the land. They attach to a specific parcel and transfer automatically when that parcel is sold. If your property has an appurtenant easement that gives you the right to cross your neighbor’s land to reach a public road, that right passes to every future owner of your property. You do not need to mention it in the deed — once recorded, it transfers with the land.

Easements in gross benefit a specific person or entity rather than a specific parcel. Utility easements — granting a power company the right to run power lines across your property — are typically easements in gross. They do not attach to any dominant parcel; they are held by the company. If you sell your property, the utility easement continues to burden it, but the utility company does not transfer their rights to your buyer — the utility retains them.

How Easements Are Created in Virginia

Virginia law recognizes several methods by which easements can come into existence.

Express Easement by Deed or Plat

The most straightforward method is a written instrument — usually a deed of easement or a provision in a deed of conveyance — that expressly grants or reserves an easement. To be enforceable against future owners, an express easement must be:

• In writing (satisfying the statute of frauds)
• Signed by the grantor
• Recorded in the land records of the circuit court clerk’s office where the property is located

An unrecorded easement may be enforceable between the original parties but will generally not bind subsequent purchasers who acquire the property without notice of the easement.

Subdivision plats frequently create easements as well. When a developer records a plat, the plat may show utility easements, drainage easements, access easements, and other encumbrances. Buyers who rely only on the deed and do not review the recorded plat may miss significant easements affecting their lot.

Easement by Implication

An implied easement arises without a written grant when the circumstances surrounding a conveyance make clear that an easement was intended, even though it was not expressly stated.

The classic scenario: a landowner sells part of their property, and the remaining parcel (or the sold parcel) has been historically accessed by crossing the other part. Even if the deed says nothing about access, Virginia courts may find an implied easement based on the prior use, the apparent and continuous nature of the use at the time of the conveyance, and the reasonable necessity of the access.

The elements typically required for an implied easement are:

1. The two parcels were formerly under common ownership
2. At the time of severance, there was an existing use of one parcel for the benefit of the other
3. The use was apparent and continuous
4. The use is reasonably necessary for the beneficial enjoyment of the dominant parcel

Easement by Necessity

An easement by necessity arises as a matter of law when a parcel of land is completely surrounded by other private land and has no access to a public road. Virginia courts recognize easements by necessity under common law, and Virginia has also codified limited statutory mechanisms for obtaining access to landlocked property.

The key requirements for an easement by necessity are:

1. At one time, the landlocked parcel and the surrounding parcel were under common ownership
2. At some point, the parcels were severed so that one became landlocked
3. The landlocked parcel has no other reasonable access to a public road

An easement by necessity does not require any showing of prior use — unlike an implied easement, it arises solely from the necessity of access. It ends if the necessity ends (for example, if the landlocked owner later acquires an adjacent parcel that provides independent access to a road).

For a detailed discussion of how landlocked properties can establish access in Virginia, see our article on Landlocked Property in Virginia.

Prescriptive Easement

A prescriptive easement is the easement equivalent of adverse possession. Under Virginia common law, a person who uses another’s land in a manner that is:

• Open and visible (not concealed)
• Continuous (without significant interruption)
• Adverse (without the owner’s permission)
• Under a claim of right (the user is claiming an entitlement, not merely a license)

…for a period of 20 years can establish a prescriptive easement over that land.

The 20-year period reflects Virginia’s statute of limitations for actions to recover land. Courts treat the prescriptive easement doctrine as analogous to adverse possession: use that is sufficiently open, continuous, and adverse for the statutory period ripens into an enforceable right.

Important limitations on prescriptive easements:

• Permissive use cannot become prescriptive. If a neighbor uses your driveway because you have given them permission to do so, that use is not adverse and cannot ripen into a prescriptive easement no matter how many years it continues. This is why landowners sometimes post notices or grant written licenses for uses they permit but do not want to become permanent encumbrances.
• The use must be consistent. The prescriptive easement, if established, covers only the use that was actually made — not broader uses the claimant might prefer.
• Interrupting the prescriptive period. A landowner can interrupt the running of the prescriptive period by filing a legal action, posting notice, or taking other steps that legally constitute an interruption.

Easement by Estoppel

An easement by estoppel can arise when a landowner makes representations or allows conduct that causes another person to reasonably rely on the existence of an easement, to their detriment. If a seller represents to a buyer that a road across a neighbor’s land is a permanent right of way, and the buyer purchases in reliance on that representation, the law may estop the landowner from denying the easement’s existence.

Estoppel-based easements arise from specific facts and are more difficult to establish than express or prescriptive easements.

Scope of an Easement

An easement is limited to the purpose for which it was created. This is often a source of dispute when circumstances change.

A few principles Virginia courts apply:

• An easement created for foot access does not automatically permit vehicular traffic
• An easement to access one parcel does not expand to provide access to additional parcels acquired by the easement holder
• Improvements to an easement area (grading, paving, widening a dirt path) are permissible if reasonably necessary for the purpose, but cannot be so extensive as to materially increase the burden on the servient estate
• Utility easements are typically limited to the facilities specified — a power line easement does not authorize the installation of a gas pipeline

When the scope is unclear, Virginia courts interpret the easement in light of the circumstances at the time it was created and the reasonable intentions of the parties.

Maintenance Responsibilities

Virginia law generally places maintenance responsibility on the easement holder — the party who benefits from and uses the easement. The owner of the servient estate is not obligated to maintain the easement area for the easement holder’s benefit.

However, a written easement may expressly allocate maintenance responsibilities differently, including sharing obligations among multiple easement holders or requiring the property owner to keep the area in a specified condition. Recorded easement documents should be reviewed carefully for any maintenance provisions.

For shared driveways and private roads used by multiple parties, a written maintenance agreement is strongly advisable. Without one, resolving disputes about repair costs, improvement decisions, and cost-sharing often requires litigation.

How Easements End

Easements can be extinguished in several ways under Virginia law:

• Express release: The easement holder executes and records a deed of release, surrendering the easement. This is the cleanest termination method.
• Merger: If the dominant and servient estates come under common ownership, the easement merges into the fee title and is extinguished. If the properties are later separated again, the easement does not automatically revive.
• Abandonment: An easement may be abandoned if the easement holder takes clear, unequivocal steps demonstrating an intent to permanently give up the right. Mere non-use, without more, is generally not sufficient to constitute abandonment under Virginia law.
• Expiration: Express easements may be created for a defined term and expire automatically at the end of that term.
• Condemnation: A government entity may acquire and extinguish an easement through eminent domain, subject to the payment of just compensation.
• Misuse: Significant and persistent overuse or misuse of an easement can, in extreme cases, support termination, though this remedy is disfavored.

Easement Disputes in Virginia

Easement disputes commonly arise over:

• Whether an easement exists at all
• The location of the easement across the servient estate
• The permitted scope of use
• Maintenance and cost-sharing obligations
• Whether an easement has been abandoned or otherwise terminated
• Whether a new use (new vehicles, new structures, extended access) is within the easement’s scope

Most easement disputes can be resolved through negotiation and a written agreement that clarifies the parties’ rights going forward. When they cannot, a circuit court action for declaratory judgment, injunction, or damages may be necessary.

If you are purchasing property in Montgomery County or elsewhere in the New River Valley and have questions about an easement shown in the title commitment or on a survey, addressing those questions before closing — not after — is the right approach. Easements that look minor on paper can have significant practical consequences.

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This article is general information only and is not legal advice. Do not rely on this article to make decisions about your specific situation. Contact Valley Legal or another licensed Virginia attorney to discuss your case. Attorney advertising.

Valley Legal, PLLC is located at 107 Pepper St SE, Christiansburg, Virginia 24073, and serves clients throughout the New River Valley of Virginia, including Montgomery County, Blacksburg, Radford, Pulaski, and surrounding communities.