Are you unsure about the legal status of part of your property? Do you want to expand past your lot line, however, are concerned about the legal ramifications? The following is a checklist of issues to keep in mind when approaching easements (or potential easements):
1. DO check to find out what easements currently exist on your property.
Easements in Virginia can be formed in many different ways; however, the most typical manner is by “express” easement. Express easements are conveyed by written documents and should be recorded in County land records. In order to fully understand what easements are (or are not) currently on your property, obtain a title report or go to County land records.
2. DO request a survey if there is uncertainty as to the boundaries of your property.
If an easement status is unclear based on a title search, it often makes sense to have a survey conducted on your property. The survey will provide clarity as to the boundaries of your property and what is/not legally your own. Furthermore, a survey should provide you with a plan that outlines your property’s boundaries and any existing express easements.
3. DON’T generalize the terms of an easement.
Easement law in Virginia is very deferential to the terms of the written document conveying rights. If you are the party granting the easement (“servient tract”), you will want to ensure that the easement itself is specific as to the rights that you wish to convey. Similarly, if you are the party establishing an easement (“dominant tract”), specific terms combined with a clear plat will establish your rights in the chain of title. Ambiguous terms expose the parties to issues in the future.
Seek legal counsel to ensure that your rights are protected and any potential issues mitigated.
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