What are the 3 Ways to Acquire a Right of Way in Virginia?

winding road through forest

This video does not create an attorney/client relationship. This video is for informational purposes and is not intended to be legal advice.

Hi, my name is Tom Jackson and I have a lot of experience in real estate litigation. I wanted to discuss how you can acquire a right-of-way. I have been able to help those with right-of-way issues. Here is a quick primer on right-of-ways. The first way you can have a right-of-way is what Virginia calls an Express Grant. You will be able to find this in a deed. Not only does it need to be in your deed but also the deed or chain of title of the person across whom you have to travel in order to get to a public road. Express means that it’s set out very succinctly and obviously in deeds that are recorded in the clerk’s office. 

The second way that you can have a right-of-way is by prescription. Prescription means that the road has been used for 20 years continuously, openly, along with some other requirements. This would cover situations where there is no writing in a deed that says there is an Express right-of-way. This road would have to be used for the last 50 years as a way in and out for a piece of property. Another important aspect of the CSE is that the person across whom you are traveling cannot have given you permission. This means that they cannot have said “you have my permission to do this” instead it has to be without permission. There are a lot of situations where prescription would apply.
The last one which is probably the most overlooked but possibly the easiest to prove is called easement by necessity. In that situation you have a piece of property that is what a lot of people would call landlocked, meaning there is no way out. However if you look back at the chain of title for the surrounding properties, you should find that the property you’re trying to get to was at some point in time united. This means that it was united with all the properties around it, having access to the road. But when it was separated in the past, it was done so without a right-of-way being reserved. Therefore the courts then can give you what’s called an easement by necessity. That easement is going to be the width of the road as it has been traveled in the past. Is it possible to be landlocked in Virginia? Yes it is, but before you come to the conclusion that you are landlocked you should see an attorney. When visiting with an attorney see if any of these three possibilities exist for you to have a legal right-of-way.