Prescriptive Easement – The Ins and Outs of Prescriptively Getting In and Out of Another’s Real PropertyLeave a Comment
Under Virginia law, there is a way to claim a right to pass over the property of another without obstacle or opposition if you have done so for at least 20 years. The Supreme Court of Virginia has ruled that, in order for one to establish a private right of way over someone else’s property by prescription, the one claiming the right of way “must prove that his use of the roadway was adverse, under a color of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owners of the land over which it passes, and that the use has continued for a period of at least 20 years.” Pettus v. Keeling, 232 Va. 483, 485 (1987).
In order for you to claim this prescriptive right of entry and exit, the use of the easement has to be ‘adverse’ to the owner of the property over which you are passing. The Supreme Court of Virginia has defined this concept as “[t]he essence of an adverse use is the intentional assertion of a claim hostile to the ownership right of another.” Chaney v. Haynes, 250 Va. 155 (1995). As long as the use of the path is hostile, and without the permission of the property owner, then the use may be considered ‘adverse’ to satisfy this element of the prescriptive right. In fact, many property owners will attempt to extinguish the adverse element by writing a letter to the claimant before 20 years has passed that they are using the path with the express permission of the property owner
Under a Claim of Right
The Supreme Court of Virginia has further stated that, “[w]here there has been an open, visible, continuous and unmolested use of a road across the property of another for the prescriptive period, the use will be presumed to be under a claim of right, and places upon the owner of the servient estate the burden to rebut this presumption by showing that the use was permissive, and not under a claim of right.” Ward v. Harper, 234 Va. 68, 70-71 (1987).
“Where the use of a roadway by persons owning property in the immediate area has been in common with use of the way by members of the general public, the essential element of exclusiveness is lacking because the use of the way is dependent upon the enjoyment of similar rights by others.” Pettus, 232 Va. at 486. However, the Supreme Court has also held that “when each landowner asserts his own right to use the way, independent of all others, and no rights are dependent upon the common enjoyment of similar rights by others, prescriptive rights may arise.” Ward, 234 Va. at 71.
In order to determine if the element of continuity has been satisfied under Virginia law, Virginia courts look to the specific circumstances and nature of the right of way at issue. “In determining continuity, the nature of the easement and the land it serves, as well as the character of the activity must be considered.” Ward, 234 at 72.
“To be continuous, a use need not be daily, weekly, or even monthly.” Pettus, 232 Va. at 488. However, “it nonetheless must be of such frequency and continuity as to give reasonable notice to the landowner that such a right is being exercised against him.” McNeil v. Kingrey, 237 Va. 400, 404 (1989).
There are two practical notes of point with establishing a prescriptive easement. First, an individual cannot simply declare that he/she has a prescriptive easement with no further action. Establishing this prescriptive right of way will require an action in a court of competent jurisdiction that results in an order from the court declaring the existence of the prescriptive right of way. Second, the Virginia Supreme Court has concluded that the claimant must establish an easement by clear and convincing evidence as opposed to a preponderance of the evidence. See Pettus, 232 Va. at 486.
If you are able to establish all of the elements of a prescriptive right of way as promulgated by the Supreme Court of Virginia and given the specific circumstances of your matter, you may indeed be able to maintain the use of that coveted right of way across another owner’s real property without opposition or obstacle.