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Prescriptive Easement

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CowgirlHD

Junior Member
What is the name of your state (only U.S. law)? VIRGINIA

Looking at a farm that does not have road-frontage and does not have a "Deeded Right of Way", but instead is said to have a "Prescriptive Easement".

In the current deed, it states that it is sold "with the non-exclusive right to use a 50 foot right of way and access road to and from Route ??? as shown on aforesaid plat of survey". There is also a sworn Affidavit registered in the Deed book in 1999 that states that this road has been in use to access this property for 30 years (and that was back in 1999, so it is 40 years now).

My question to this forum is that from all of your varied experiences - am I looking at possible problems? Can this road ever be closed off by property owners or more likely - future property owners?? Do I have any "legal" rights at all or just permission to go up and down the road? Thanks for any advice...
 


HomeGuru

Senior Member
What is the name of your state (only U.S. law)? VIRGINIA

Looking at a farm that does not have road-frontage and does not have a "Deeded Right of Way", but instead is said to have a "Prescriptive Easement".

In the current deed, it states that it is sold "with the non-exclusive right to use a 50 foot right of way and access road to and from Route ??? as shown on aforesaid plat of survey". There is also a sworn Affidavit registered in the Deed book in 1999 that states that this road has been in use to access this property for 30 years (and that was back in 1999, so it is 40 years now).

My question to this forum is that from all of your varied experiences - am I looking at possible problems? Can this road ever be closed off by property owners or more likely - future property owners?? Do I have any "legal" rights at all or just permission to go up and down the road? Thanks for any advice...
**A: you do not have any rights to the property but only the right of ingress and egress.
 

drewguy

Member
You need to consult with a real estate attorney to determine whether the affidavit recorded in the deed book in fact suffices to perfect the easement such that the other property is burdened by it.

From your description it sounds like there is a claim to a prescriptive easement that may well meet the requirements for such an easement, but that it may not be formally recorded. If that is the case, the owner of the land over which the easement (supposedly) runs might be able to challenge the easement claim on a variety of bases and, if they won, could prevent you from using this easement.

Put more simply, from your description it sounds like the current owners believe they have an easement but have not taking the steps necessary to record it as an actual easement. So they are selling you a claim to an easement, not an easement itself.
 

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