Introduction to Right of Way Agreements in Virginia
In Virginia, right of way laws dictate the set parameters for both property owners and the general public. In simple terms, a right of way is the legal allowance of one party to pass over the land of another party. It is critically important for property owners to be familiar with these laws so that they do not unintentionally license others to trespass over their land, or in other words give up their rights to exclude others from their land. It is equally important for lay people to understand right of way laws so that they understand what their own rights are when going about town , whether crossing private property on foot, riding a bike, or driving an automobile.
While right of way is widely used as a term in the construction and property rights context, it is important to note that not all states use the same definition for this term. The meaning of the term "right of way" in Virginia is set forth in the statute without regard to the context, so it is important to be familiar with the statutory definition of right of way in Virginia when dealing with right of way issues.
Categories of Right of Way in Virginia
There are several categories of right of way. Landowners need to be aware of what type of right of way they have on their property, or whether they have a right of way at all.
The first category is a public right of way. A public right of way is a right of way that a company’s agent has the right to use your property easily based on governmental authority. Think public roads and highways. Those are public right of ways.
The second category is a private right of way. A private right of way is a right of way that a company has to do work on your property for its benefit. This right of way is strictly for the benefit of the company who is doing the work. If you have a private right of way, the company using the right of way is only permitted to use the right of way on the agreed-upon terms (i.e.-once every five years, once every year).
The third category is a utility right of way. A utility right of way is similar to a private right of way in that the company doing the work has to use the right of way on the agreed-upon terms. And, likewise, if work or damage is done, the company doing the work will be held responsible for those damages.
A fourth type of right of way we see a lot in Virginia are easements. An easement allows a limited use of a landowner’s property and is typically reserved for utilities. If you’re on the receiving end of an easement, you have the right to use it for a certain type of purpose. For example: the company needs to use a certain portion of your property in order to access a pipe located on your property (e.g.-water pipe, gas pipe, sewer pipe) or to access a utility tower near your property. An easement will set out a description of how the company will be using the landowner’s property.
The fifth type of right of way is a site agreement for telecommunications companies. A site agreement is when a telecommunication company wants to come into an area and build a cell tower. In order for the company to use the property, they need to enter into an agreement with the landowner which will set out exactly how and when the telecommunication company will use the property.
Creating a Right of Way in Virginia
Establishing a right of way in Virginia typically begins with a dispute between neighboring property owners, and not knowing where it began only goes to prove how complicated a dispute over a right of way can be. The first step is to determine whether the right of way was created through an express or implied agreement between the parties. If not, then the next consideration is whether there are statutes governing the use of the right of way.
If the right of way was created by express agreement of the parties, the terms of the agreement control. However, if the right of way is created solely by operation of law, the general rules of law governing such rights will apply.
In Virginia, the law is very specific regarding these matters. Implied easements (i.e., easements not established by deed) generally arise in one of three ways: by implication; by necessity (including quasi-easements); or by prior use. An implied easement arises by intention of the parties, and the intention is determined from the reasonable presumptions to be drawn from the facts of the situation between the parties. In determining whether an easement should be implied from a conveyance, the intent of the parties is of paramount importance. The existence of an implied easement depends upon necessity, which is determined by actual, not potential, necessity. Necessary means requisite or indispensable, as distinguished from convenient or beneficial.
There is no set formula for determining the existence of an implied easement, since the facts of each case are determinative of the intention of the parties. So creating an implied easement is a painstakingly slow process that must be gone through before a Virginia Circuit Court Judge will review the evidence and decide if a right of way exists.
Even if an easement is not implied, the holder of the dominant estate may be entitled to additional rights of use and enjoyment of the servient estate. For example, the right to park on a right of way has been acknowledged in some jurisdictions. In Virginia, however, parking is not commonly awarded.
Obligations and Limitations
Property owners and others holding a prior right of way are expected to use the right of way in a manner consistent with their respective rights. A property owner is not permitted to interfere with the prior right of way by erecting obstacles (physical or otherwise) across, or otherwise blocking the passage of anticipated or observed uses of the prior right of way.
However, a user over a proper right of way must also exercise caution and care in the use of the right of way. This duty can include avoiding traffic over the right of way during wet or frozen conditions as a means of preventing damage that may result from use of the right of way. In fact, if it is established on the facts that the user over the property has created, or aggravated, the damage to the prior right of way, then such party may be liable for damages arising from such creation or aggravation.
Conflicts and Resolutions
Disputes over rights of way can arise in various contexts. The most common concerns the scope of a right of way, where the dispute centers around whether certain activities are permitted. For example, is the right of way limited to vehicle travel, or can it be used for pedestrian travel as well? In such cases, the property owners may not agree on the interpretation of the language defining the right of way. In some cases, for example, a property owner may not want others to travel over the right of way due to the potential for damage to vegetation, or further erosion of an unstable slope. Although there is no Virginia case law indicating that all right of way access should be interpreted as allowing pedestrians , Virginia Courts have held in other contexts that any reasonable use of an easement should be permitted.
Another common area of dispute arises when a landowner blocks access to a private right of way. If a landowner purposefully denies access to the right of way, whether by blocking access with a gate or fence, blocking the traveable area with landscaping or paving, or other actions, the user of the right of way may require relief from the Courts. The primary relief sought in such actions is ordinary injunctive relief, requiring the landowner to cease the conduct that is blocking access.
Effect on Value
The broad significance of the right of way is most often reflected in its impact on property value. Fair or not, Virginia law places the burden on landowners to do something meaningful with the land burdened by the right of way.
Items of value are sometimes stripped from burdened parcels by the imposition of a utility easement. The appointment of a public or private easement holder often reduces the burdened parcel’s value, by eliminating the landowner’s ability to use that land for free. In some instances, the holding of a right of way on burdened land imposes such significant detriments that landowners assert that the burdened land has no value. Even in the presence of such utility easements on burdened parcels, however, other factors may justify a finding of value in the land—even if the property cannot be used for its most profitable purpose. For example, certain bulk properties may still be valued at reasonably high rates per square foot because the right of way holding entity may only require a fraction of the property’s total square footage. Conversely, the scarcity of commercially zoned properties within a metropolitan area may impact the value of the parcel, notwithstanding the significant detriments conferred by an easement over a small portion of the land.
Easements and rights of way also have the potential to increase the value of adjacent, abutting land. Subject to conditions in existing title, the owner of property adjacent to an easement or right of way may be entitled to compensable damages by virtue of any depreciated value to their property caused by the existence or use of the property easement holder’s property rights. In this context, the existence or use of the right of way over the burdened property must have a material negative impact on the adjacent property, before a compensation claim will ultimately succeed.
Amendments and Revisions
Recent changes and updates in the law: The most recent change of State Code relating to Right of Way Laws is in the 2011 General Assembly. This bill changed the section for dealing with the penalties from Sec. 46.2-817 to 46.2-868. It is now a fine of no more than $500.00 for first offense and 6 months in jail as opposed to $200.00 and /or 60 days in jail in prior version. For second and subsequent offenses, it is a fine of $500 and/or 12 months in jail. Keep in mind that it is not "or", but it is $500.00 per offense and 12 months in jail. There has been other changes in the laws concerning right of way. The law for blocking a driveway has been repealed and there are several areas near schools and business areas that a new law makes it legal to park contrary to normal parking laws.
Legal Counsel
When dealing with a Virginia property right of way issue, it is best to obtain your own counsel prior to signing any documents or giving any authorizations . It is recommended that you consult an attorney in regards to private easements or when an easement or right of way is being taken for a public use unless you are certain that the value of the easement is less than $5,000.00. Information on private easement is available HERE. For more information about public easements, see Va Code § 25.1-200 here.