Virginia Easements and Eminent Domain: Prescriptive Rights and Takings

In Virginia, a prescriptive easement generally takes at least 20 years of use that is adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the landowner, and the claimant must prove it by clear and convincing evidence. That rule comes from Supreme Court of Virginia case law, not a statute: Pettus v. Keeling (1987) restated the long-settled 20-year test and first required clear and convincing proof. On the eminent domain side, article I, section 11 of the Virginia Constitution says that, outside takings for utility, common carrier and railroad services, a taking is not for public use if its primary use is private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue or economic development, except to eliminate a public nuisance on the property.

This page covers both halves of Virginia law: easements between private landowners first, then the power to take private property. For other states, see our guide to easement laws by state.

Information last verified on 2026-10-20. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers Virginia law on private easements (Virginia Supreme Court case law and Titles 10.1, 15.2 and 55.1 of the Code of Virginia) and on condemnation of private property (Va. Const. art. I, § 11, Va. Code § 1-219.1 and Title 25.1). It does not cover adverse possession of title (see Virginia squatters' rights and adverse possession), homeowners' association covenants, zoning or regulatory takings, federal condemnation (see eminent domain laws by state), or local ordinances.

How Long Does a Prescriptive Easement Take in Virginia?

A prescriptive easement in Virginia takes at least 20 years. No statute sets that period; it comes from Supreme Court of Virginia case law. In Pettus v. Keeling (1987), the court restated the settled test for a private right of way by prescription, citing Williams v. Green (1910):

"In order to establish a private right of way over lands of others by prescription, the claimant must prove that his use of the roadway was adverse, under a claim 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."

In the same case the court raised the burden of proof: "We believe, however, and now hold, that the claimant should be required to establish an easement by prescription by clear and convincing proof."

Pettus also repeated a long-standing presumption from Rives v. Gooch (1932). Where a road across another's land has had "an open, visible, continuous and unmolested use" for at least 20 years, the use is presumed to be under a claim of right, and the burden shifts to the landowner to show that the use was permissive.

Exclusiveness has a specific meaning. The Pettus court explained that when a person's use of a way depends on others enjoying similar rights, the element of exclusiveness is lacking and no prescriptive right arises. When each landowner asserts an independent right of his own to use the way, prescriptive rights may still arise.

One statute shortens the period for one kind of claimant. Under Va. Code § 15.2-2109.1, "In an action to establish a prescriptive easement involving the provision of water and sewer services, a political subdivision shall demonstrate that the use has continued for a period of at least ten years. This section shall not affect any other requirement which may be necessary to establish a prescriptive easement."

Prescriptive easements compared with adverse possession

A prescriptive easement gives a right to use someone else's land, such as a path or driveway. Adverse possession gives ownership. In Virginia the two run on different clocks. Va. Code § 8.01-236 bars an entry on, or an action to recover, land unless brought "within fifteen years next after the time at which the right to make such entry or bring such action shall have first accrued," subject to a three-year limit for unlawful entry or detainer actions under § 8.01-124. That 15-year period governs title. The 20-year easement period comes from Pettus. For the ownership side, see Virginia squatters' rights and adverse possession, and for other filing deadlines, see the Virginia statute of limitations guide.

Can a Landowner Stop a Prescriptive Easement From Forming?

Title 55.1, chapter 3, article 1 of the Code of Virginia (the easement article) and the limitation sections in §§ 8.01-236 and 8.01-237 contain no procedure for posting a sign or recording a notice to stop a prescriptive easement from running, of the kind some states have.

Under Pettus, the question is whether the use was under a claim of right or by permission. Once 20 years of open, visible, continuous and unmolested use is shown, the landowner carries the burden of rebutting the presumption "by showing that the use was permissive, and not under claim of right."

Landlocked Property in Virginia: Easements by Necessity

Virginia's easement article and its highway condemnation chapter (Title 33.2, chapter 10) contain no procedure that lets a landlocked owner petition to condemn a private road across a neighbor's land. A landlocked owner's route is the common-law way of necessity, which the Supreme Court of Virginia described in Middleton v. Johnston (1981).

The court explained that "A right of way by necessity arises from an implied grant or implied reservation." Its requirements:

• Common ownership. "To establish such a right, the alleged dominant and servient tracts must have belonged to the same person at some time in the past."
• Reasonable necessity. "In Virginia, contrary to the rule in some other jurisdictions, a showing that the way is reasonably necessary to the enjoyment of the dominant estate is all that is required; some courts hold that absolute physical necessity must be established."
• Clear and convincing proof. "And such reasonable necessity must be proven by clear and convincing evidence."
• No other access. "Further, a way of necessity will not be established if there is another way of access, although less convenient and will involve some labor and expense to develop."

Easements implied from an existing use

A related implied easement arises when land is divided while a use is already in place. In Brown v. Haley (1987), the Supreme Court of Virginia stated: "When a landowner conveys a portion of his land, he impliedly conveys an easement for any use that is continuous, apparent, reasonably necessary for the enjoyment of the property conveyed, and in existence at the time of the conveyance." The court added that the plaintiffs "must prove by clear and convincing evidence that the use is a reasonable necessity, not an absolute physical necessity."

Express, Utility, Solar and Conservation Easements

Virginia's recording act makes an unrecorded "deed conveying any estate or term" void "as to all purchasers for valuable consideration without notice not parties thereto and lien creditors, until and except from the time it is recorded in the county or city in which the property subject to such contract, deed, or bill of sale is located" (Va. Code § 55.1-407(A)). To look up recorded deeds and easements, see how to search Virginia property records.

Several statutes address specific kinds of easements:

• Solar easements. "Any easement obtained for the purpose of exposure of solar energy equipment, facilities, or devices shall be created in writing and shall be subject to the same conveyancing and instrument recording requirements as other easements" (Va. Code § 55.1-137).
• Utility covenants. Where an easement, appurtenant or in gross, is expressly granted by an instrument recorded on or after July 1, 2006, and imposes a covenant to provide a future easement for utility services, to relocate, construct or maintain a utility's facilities, or to pay the cost of that work, the covenant runs with the servient land for the benefit of the utility and its successors (Va. Code § 55.1-306(B)).
• Conservation easements. "A conservation easement shall be perpetual in duration unless the instrument creating it otherwise provides a specific time" (Va. Code § 10.1-1010(C), part of the Virginia Conservation Easement Act).

Using a Shared Easement: Interference, Rules of Use and Relocation

Va. Code § 55.1-305 sets duties for both sides of an easement. Unless the easement's own terms say otherwise, "the owner of a dominant estate shall not use an easement in a way that is not reasonably consistent with the uses contemplated by the grant of the easement, and the owner of the servient estate shall not engage in an activity or cause to be present any objects either upon the burdened land or immediately adjacent to such land that unreasonably interferes with the enjoyment of the easement by the owner of the dominant estate." For this section, an "object" does not include a fence, electric fence, cattle guard, gate or division fence adjacent to the easement, and any violation "may be deemed a private nuisance."

Gates get a separate rule. Unless a contract provides otherwise, the owner of land crossed by a private road or right-of-way may put up gates where fences meet the road, and a court may order reasonable changes on petition; leaving such a gate open without permission is a Class 1 misdemeanor (Va. Code § 33.2-110). In Thibault Enterprises, LLC v. Yost (April 9, 2026), the Supreme Court of Virginia rejected a rule that a servient owner must always remove every object within an easement of a defined width. Courts reviewing an encroachment claim should "(1) examine the language of the deed to determine the purpose of the easement and the intent of the parties; and (2) evaluate whether the actions of the owner of the servient estate unreasonably interfere with the easement."

Since July 1, 2026 (2026 Acts, c. 664), the servient owner may also set reasonable rules of use. Under Va. Code § 55.1-305.1, the owner of the land burdened by an easement "may establish reasonable rules of use of such easement, including establishing a reasonable speed limit," and may bring a civil action for a violation to recover "actual damages or $500, whichever is greater, and reasonable attorney fees and costs and may seek injunctive relief." The section does not apply to an easement held by the United States, the Commonwealth, or a federal or state agency, authority or political subdivision (§ 55.1-305.1(C)).

Moving or changing an easement

The servient owner can ask a court to move or modify an easement. Under Va. Code § 55.1-304(C), without a written agreement, the servient owner may petition the circuit court with notice to all parties in interest, and "The petition shall be granted if, after proper notice and a hearing, the court finds that relocation or modification of the easement does not materially" do any of the following:

1. lessen the utility of the easement;
2. after the change, increase the burden on the easement holder in its reasonable use and enjoyment of the easement;
3. impair an affirmative, easement-related purpose for which the easement was established;
4. during or after the change, impair the safety of anyone entitled to use the easement;
5. during the change, disrupt the use and enjoyment of the easement, unless the servient owner substantially mitigates the duration and nature of the disruption; or
6. impair the value, use, or physical condition of the land benefitted by the easement.

"The owner of the servient estate shall pay all costs, except attorney fees, to relocate or modify the easement."

The procedure covers easements created by grant or reservation, prescription, implication, necessity, estoppel or another method, but it cannot be used to relocate or modify a public service corporation or public utility easement or facility, a conservation or open-space easement (or an easement appurtenant to one), a telecommunications easement, an easement held by a public entity, or any easement where the new location would interfere with those easements (§ 55.1-304(D)).

This version of § 55.1-304 took effect July 1, 2026 (2026 Acts, c. 916). Before then, only an easement for ingress and egress that had existed for at least 10 years could be relocated by petition, and the court asked whether relocation would cause economic damage or undue hardship.

Entering a neighbor's land to make repairs

A separate section in effect since July 1, 2026 (2026 Acts, cc. 428 and 429) addresses access without an easement. Under Va. Code § 55.1-304.1, when an owner cannot repair or maintain the exterior of a structure without entering adjoining property, and permission has been denied or unreasonable conditions placed on entry, the owner "may petition the circuit court for a right of entry to the adjoining property."

How a Virginia Easement Ends

The easement's own instrument controls first: a conservation easement, for example, lasts forever unless the instrument creating it sets a specific time (§ 10.1-1010(C)). Virginia's easement article (Title 55.1, chapter 3, article 1) does not set a period of nonuse after which an easement ends. Nonuse alone does not end it. The Supreme Court of Virginia has held that "mere non-use of an easement created by deed, for a period however long, will not amount to abandonment"; there must also be "acts or circumstances clearly manifesting an intention to abandon," or adverse use by the servient owner, acquiesced in by the easement holder, long enough to create a prescriptive right. The party claiming abandonment must prove it by clear and unequivocal evidence (Pizzarelle v. Dempsey, 2000, quoting earlier decisions including Robertson v. Robertson, 1973). A court may also relocate or modify an easement under § 55.1-304 rather than end it.

Eminent Domain in Virginia

Virginia's limits on eminent domain sit in its Constitution, in Va. Code § 1-219.1, and in the condemnation procedure of Title 25.1. For a comparison with other states and the federal rules, see eminent domain laws by state.

Article I, section 11 of the Virginia Constitution provides:

"That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking."

Because the text says "damaged or taken," it reaches damage to property as well as outright takings.

Can Virginia Take Property for Private Development?

Article I, section 11 sharply limits takings for private development. The constitutional amendment containing these limits took effect January 1, 2013. The section continues:

"A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is."

Va. Code § 1-219.1 defines "public uses" to embrace only six kinds of acquisitions: property taken for possession, ownership, occupation and enjoyment by the public or a public corporation; property taken for public facilities built or run by public corporations, or by private entities with a written agreement with a public corporation providing for public use of the facility; property taken for a public service corporation, public service company or railroad; property taken for authorized utility service by a government utility corporation; property taken "for the elimination of blight provided that the property itself is a blighted property"; and property in a redevelopment or conservation area that is abandoned, or whose acquisition is needed to clear title where one owner agrees or is by agreement of all owners.

Subsection D adds a further test. Except for takings for public service companies and railroads, for authorized government utility service, and for sanitary sewer, water, stormwater or transportation facilities by a public corporation (as the subsection describes them), property can be taken only where the public interest dominates the private gain and the primary purpose is not private financial gain, private benefit, an increase in tax base or tax revenues, an increase in employment, or economic development. Subsection C repeats the rule that no more property may be taken than is necessary for the stated public use.

During the case, the owner may argue that the use is not public, that the stated use is a pretext, or that the taking violates subsection D (§ 1-219.1(E)). If a partial taking would leave an uneconomic remnant, the condemnor must offer to buy the whole property at fair market value, but may not take the remnant if the owner objects and wants to keep it (§ 1-219.1(G)). The section does not apply to petitions filed or certificates recorded before July 1, 2007 (§ 1-219.1(J)).

For comparison, in Kelo v. City of New London (2005) the U.S. Supreme Court held that the takings challenged there satisfied the Fifth Amendment's public use requirement because the city's plan "unquestionably serves a public purpose," while stressing that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power." Virginia's constitutional and statutory text is that kind of further restriction.

Who can condemn

Article I, section 11 names public service companies, public service corporations and railroads as exercising eminent domain for public use when providing authorized utility, common carrier or railroad services. One limit applies between condemnors: under Va. Code § 25.1-102(A), a corporation or electric authority may not petition to condemn property belonging to another corporation that has the power of eminent domain unless the State Corporation Commission, after notice and an opportunity for a hearing, certifies "that a public necessity or that an essential public convenience shall so require."

Public service corporations condemn through the chapter 2 procedure of Title 25.1. They may not take a right-of-way within 60 feet of a dwelling except in listed cases, such as when the court finds another location impractical without unreasonable expense, or occupancy of a street or highway with permission. A corporation without allotted service territory or a utility certificate must first obtain any required certificate of public convenience and necessity, and eminent domain is not available for coal pipelines (§ 56-49(2)). A natural gas company may enter to survey after certified-mail requests and notices sent at least 15 days ahead (§ 56-49.01).

In Title 25.1, "state agency" includes any person with authority to acquire property by eminent domain under state law (§ 25.1-100), so rules written for state agencies can reach utilities and other private condemnors.

What a Condemnor Must Do Before Filing

Inspection. A locality, or a condemnor using the certificate procedure, that wants to enter land to inspect it without the owner's permission must make a written request not less than 30 days before the first date of the proposed inspection, and must tell the owner that if permission is withheld, the petitioner "shall be permitted to enter the property on the date of the proposed inspection" (Va. Code § 25.1-203(B)(1)).

A real effort to buy. "A condemnor shall not institute proceedings to condemn property until a bona fide but ineffectual effort to purchase from the owner the property sought to be condemned has been made" (Va. Code § 25.1-204(A)). Under § 25.1-204, that effort includes:

• a written offer to acquire with a written statement explaining the factual basis for the offer, describing the public use, and certifying that the acquisition has been reviewed for compliance with § 1-219.1 (subsection B);
• a complete copy of the appraisal the offer is based on, and if the condemnor obtained more than one appraisal, a copy of all appraisals obtained before the offer or negotiations (subsection C);
• an examination of title for at least 60 years, with a copy of the title report and of every recorded instrument it identifies provided to the owner (subsection D).

For a state agency, the offer may not be less than the agency's approved appraisal (if one is required) or, when the entire parcel is being acquired, the current assessed value for real estate tax purposes, whichever is greater, unless the property has physically changed in a material and substantial way since the assessment (§ 25.1-204(E)(1)). No owner has to surrender possession before the agency pays the agreed price or deposits the required amount with the court (§ 25.1-204(E)(2)).

The Condemnation Case: Deadlines and Who Decides Compensation

The deadline that matters most comes right after service. Under Va. Code § 25.1-213, "Within 21 days of the service thereof any such owner who desires to assert any objection or defense to the taking or damaging of his property or to the jurisdiction of the court to hear the case, and to make his election to proceed with either the appointment of commissioners or the empanelment of a jury," must file an answer and grounds of defense. Section 25.1-214(A) states the consequence: failure to file "shall preclude the owner from any other defense by way of pleas in bar or otherwise, except that for good cause shown the time for filing such answer and grounds of defense may be extended by the court." A late owner still may appear, present evidence of value and damage, and share in the award, and the petitioner may then choose commissioners, a jury or the court (§ 25.1-214).

The answer is also where the owner chooses who sets compensation: commissioners or a jury.

Objections first. If an answer objects to the court's jurisdiction, the court decides those issues and other matters in controversy, other than just compensation, before setting a trial date on compensation (§ 25.1-219(B)). An order for the petitioner on those preliminary issues is not a final order for appeal; an order against the petitioner is final for appeal "if the petitioner so elects" (§ 25.1-219(D)).

After the award. Either party may file written exceptions to the commissioners' or jury's report "not later than 10 days after the rendering of the report" (§ 25.1-233(B)). The order confirming, altering or modifying the report is final, and an aggrieved party may appeal to the Court of Appeals (§ 25.1-239).

Owner deadlines at a glance

The 100-day periods apply to takings and condemnation proceedings on or after July 1, 2025 (2025 Acts, c. 617); for earlier ones, the periods were 180 days.

Early Entry and Certificate Takings

Entry before the award. After 21 days following service of a petitioner's application to enter before compensation is fixed, and after a hearing, a court may approve the application if it finds that a public necessity or essential public convenience requires the entry, that an emergency justifies entry before compensation can be determined and paid into court, and that the owners' interests will be adequately protected, such as by payment into court of the amount of the § 25.1-204 offer (Va. Code § 25.1-224(A)).

The court may also require the petitioner to post a surety bond (§ 25.1-224(B)). An owner may apply to withdraw his share of money paid into court, and the court may require a bond for any amount above 50 percent of that share (§ 25.1-243(B)). The amount deposited or withdrawn cannot be used as evidence at the compensation trial and does not limit either side's appeal (§ 25.1-243(F)).

Certificate ("quick-take") procedure. Condemnors authorized by their enabling statutes to use the certificate procedure in chapter 3 of Title 25.1 must give the owner or tenant notice by certified or registered mail between 30 and 45 days before the certificate is filed or recorded (§ 25.1-306). Recording the certificate ends the owner's interest, vests title in the condemnor and moves liens to the deposited funds (§ 25.1-308), and the owner may petition the court to distribute the deposit (§ 25.1-310). If compensation is not agreed, the condemnor must then start condemnation proceedings, or the owner may petition, within the periods in the deadline table above (§§ 25.1-313, 25.1-318).

How Just Compensation Is Calculated in Virginia

Va. Code § 25.1-230(A) directs the commissioners or jury to determine "(i) the value of the property to be taken and (ii) the damages, if any, that may accrue to the residue beyond the specific enhancement in value, if any, to such residue caused by the taking and public use of the property for which it is condemned." Any increase in the remaining land's value may reduce the damages to the residue but "shall not be offset against the value of the property taken," and if the increase exceeds the damages, the owner does not owe the difference.

Value is fixed as of the lawful taking or the filing of the petition, whichever comes first (§ 25.1-100). In valuing the property before the taking, any rise or fall in value caused by the project itself, other than physical deterioration within the owner's control, is disregarded (§ 25.1-230(A)). In an inverse condemnation action, the valuation date is the date the court finds the property was taken or damaged (§ 8.01-187).

Lost profits and lost access. The Constitution requires both to be included in just compensation. Under Va. Code § 25.1-230.1(C), lost profits of a business or farm operation on the property count if the owner proves the amount with reasonable certainty, shows the loss was directly and proximately caused by the taking or damaging, and meets four conditions: the loss cannot reasonably be prevented by relocating the operation, it is not included in relocation assistance, compensation for it is not duplicated, and it is determined under generally accepted accounting principles. Section 25.1-100 limits "lost profits" to a period not exceeding three years from the later of the valuation date or the date the owner is prevented from using the land. Section 25.1-230.1(G) does not provide compensation in inverse condemnation claims for lost profits or lost access from temporary interference lasting fewer than seven days.

Title 25.1 contains no percentage premium above fair market value for taking a home. The extra payments a displaced homeowner may receive are the relocation payments described below.

Conservation easement land. Under Va. Code § 25.1-110, in effect since July 1, 2026 (2026 Acts, c. 980), a condemnor of land under a conservation or open-space easement must, "in addition to any compensation determined under the provisions of this title," compensate the Commonwealth for tax credits the landowner received and the locality for property tax the landowner avoided, in amounts proportionate to the land condemned.

Costs, Attorney Fees and Interest

Virginia's cost rules depend on how the case ends:

• Survey costs. Section 25.1-245.1(B) directs the court to order the condemnor to pay the owner reasonable costs and fees for a survey, "not to exceed $7,500, unless the court approves a higher amount."
• Award 25 percent or more above the first offer. If an owner whose property is taken under Title 25.1 or Title 33.2 is awarded at trial an amount "25 percent or more greater than the amount of the condemnor's initial written offer," the court "may" order the condemnor to pay "(i) reasonable costs, other than attorney fees, and (ii) reasonable fees and travel costs, including reasonable appraisal and engineering fees incurred by the owner, for up to three experts or as many experts as are called by the condemnor, whichever is greater, who testified at trial" (§ 25.1-245.1(C)). This is discretionary, and it does not cover attorney fees.
• Utility exception. Neither rule applies when a public service company or corporation, a railroad or a government utility corporation takes less than a fee simple (such as an easement) and just compensation is determined to be less than $10,000 (§ 25.1-245.1(E)).
• Dismissal before trial. Before the compensation trial begins, a petitioner that has not taken title or possession may dismiss as of right, but must pay the owner's reasonable expenses actually incurred preparing for that trial, unless a settlement provides otherwise (§ 25.1-248).
• Dismissal after trial begins. When a petitioner obtains an order dismissing the proceedings as a matter of right under § 25.1-249, after the compensation trial has begun, the order must require it to pay the owner's actually incurred attorney's fee, witness fees including reasonable fees of not more than three expert witnesses, and other reasonable expenses and compensation for time spent; if these are not paid within 30 days, judgment is entered against the petitioner. If the petitioner fails to pay the award in time, the owner may obtain dismissal with the same expenses (§ 25.1-250).
• State agency loses or abandons. When a state agency brings the condemnation, the court must award the owner reasonable costs, "including reasonable attorney, appraisal, and engineering fees," if the final judgment is that the agency cannot acquire the property or the agency abandons the taking in full or in part (§ 25.1-419).
• Inverse condemnation. When an owner wins a declaratory judgment that a state agency's project took or damaged the property, or the Attorney General settles the claim, the owner is reimbursed reasonable costs, including attorney, appraisal and engineering fees (§ 25.1-420).
• Certificate takings. An owner who petitions under § 25.1-318 is reimbursed "fees and costs, including filing fees and attorney fees, incurred in filing the owner's petition."
• Inspection damage. If a petitioner's inspection entry damages the property, the court may award attorney fees, court costs and fees for up to three experts, or as many as the petitioner called (§ 25.1-203(D)).

Interest. Where the petitioner took possession before the award, the owner receives interest on the difference between the final award and the amount the owner received or could draw from the money paid into court, "at not less than the judgment rate of interest as set forth in § 8.01-382, compounded daily" (§ 25.1-244(A)).

Relocation Assistance in Virginia

Virginia's relocation statutes in chapter 4 of Title 25.1 apply when a state agency displaces a person. The printed limits include:

• an additional payment of up to $31,000 to a person displaced from a dwelling the person owned and occupied for at least 90 days before negotiations began (§ 25.1-409(A));
• for a tenant or other occupant of at least 90 days who does not qualify for the homeowner payment, a payment to rent a comparable dwelling for up to 42 months, capped at $7,200 (§ 25.1-410(A));
• for a person displaced from a business or farm operation, an optional fixed payment of $1,000 to $75,000 instead of moving expenses (§ 25.1-408).

No one may be required to move from a dwelling unless the head of the state agency is satisfied that comparable replacement housing is available (§ 25.1-414(B)); the 90-day notice before a required move is in the deadline table above.

Under § 25.1-415, these limits "shall be adjusted to conform to future revisions of corresponding monetary benefits" under the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, so the amounts actually available may differ from the figures printed in the Virginia sections.

Inverse Condemnation in Virginia

When a government takes or damages property without filing a condemnation case, the owner's remedy is an inverse condemnation action. In Richmeade, L.P. v. City of Richmond (2004), the Supreme Court of Virginia held that "the trial court did not err in applying the three-year limitations period of Code § 8.01-246(4) to this inverse compensation action." That provision is now § 8.01-246(A)(4). Missing that three-year window can end the claim.

Getting Condemned Land Back

Va. Code § 25.1-108 gives former owners a right to repurchase in defined circumstances. It applies only where the condemnor acquired a fee simple interest by eminent domain (§ 25.1-108(C)). One of them: if the work described in the condemnation petition or required written statement has "not been let to contract or construction commenced within a period of 20 years from the date that the fee simple interest in the property vested in the condemnor," and the property is not being used for other public uses, the condemnor must declare its interest surplus and offer to sell the property to the former owner or the owner's heirs, successors or assigns.

The same duty arises at any time the property is no longer needed for the public use for which it was taken or another specific public use within § 1-219.1, and in either case the former owner may make a written demand that the condemnor declare the property surplus and offer it for sale. A waiver of the right to receive the offer is void and unenforceable.

The offer must be in writing at "the price paid by the condemnor to the former owner plus interest at the annual rate of six percent, provided that the condemnor may increase the price by the fair market value of the condemnor's improvements," and the price may never exceed the property's fair market value when the offer is made. A former owner who does not accept a complying offer in writing within six months loses the right. The section does not apply to property acquired by the Commissioner of Highways under Title 33.2, property a locality or the Virginia Passenger Rail Authority acquires for transportation projects, or railroad property acquired for actual operating purposes that is unsuitable for independent development. The Virginia Passenger Rail Authority exclusion took effect July 1, 2026 (2026 Acts, c. 924).

Recent Changes: The 2026 General Assembly Session

Each of these 2026 acts took effect July 1, 2026, and this page describes the law as amended:

• Va. Code § 55.1-305.1 (new, 2026 Acts, c. 664): servient owners may set reasonable rules of use for an easement not held by a public entity and sue for the greater of actual damages or $500, plus reasonable attorney fees and costs.
• Va. Code § 55.1-304.1 (new, 2026 Acts, cc. 428 and 429): a court petition for a right of entry onto adjoining land to repair or maintain a structure's exterior.
• Va. Code § 55.1-304 (rewritten, 2026 Acts, c. 916): relocation or modification by petition now reaches most easements, not only ingress-and-egress easements at least 10 years old, under the six-harm test, with public service, utility, telecommunications, conservation and public-entity easements excluded.
• Va. Code § 25.1-110 (new, 2026 Acts, c. 980): added compensation to the Commonwealth and the locality when land under a conservation or open-space easement is condemned.
• Va. Code § 25.1-108 (amended, 2026 Acts, c. 924): property the Virginia Passenger Rail Authority acquires for transportation projects joined the exclusions from the repurchase right.
• 2026 Acts, c. 954: removed the former $25,000 limit on reestablishment expenses for a displaced farm, nonprofit organization or small business (§ 25.1-406); requires a certificate of take recorded on or after July 1, 2026 to be filed with the circuit court clerk the same day under a single case number (§ 25.1-307); and requires the clerk to pay out court-ordered compensation within seven business days (§ 17.1-222.2).

Virginia Easement and Eminent Domain Rules at a Glance

Related Virginia Property Guides

• Easement laws by state
• Eminent domain laws by state
• Virginia squatters' rights and adverse possession
• How to search Virginia property records
• Virginia statute of limitations guide

This article provides general legal information about Virginia easement and eminent domain law. It is not legal advice. Laws change and court decisions apply them to specific facts. For a specific situation, contact a lawyer licensed in Virginia.

Last updated: 2026-10-20.

Frequently Asked Questions

How long does it take to get a prescriptive easement in Virginia?

At least 20 years of use that is adverse, under a claim of right, exclusive, continuous, uninterrupted and with the landowner's knowledge and acquiescence, proven by clear and convincing evidence (Pettus v. Keeling, 1987). A political subdivision claiming a water or sewer easement needs 10 years, with the other requirements unchanged (Va. Code § 15.2-2109.1).

Is the prescriptive easement period in Virginia 15 or 20 years?

The 15-year period in Va. Code § 8.01-236 governs entry on or actions to recover land, the adverse possession of title. The Supreme Court of Virginia requires at least 20 years for a prescriptive easement (Pettus v. Keeling, 1987), and a political subdivision claiming a water or sewer easement needs 10 years (Va. Code § 15.2-2109.1).

What can I do if my land is landlocked in Virginia?

Virginia's easement article and highway condemnation chapter contain no private-road condemnation procedure for landlocked owners. The common-law way of necessity requires that both tracts were once owned by the same person and that the way is reasonably necessary, proven by clear and convincing evidence, and it is not established if another access exists, even a less convenient one (Middleton v. Johnston, 1981).

Can my neighbor block my easement in Virginia?

Unless the easement's terms provide otherwise, the servient owner may not engage in an activity or place objects that unreasonably interfere with the easement holder's enjoyment of it, and a violation may be deemed a private nuisance. Fences, electric fences, cattle guards, gates and division fences adjacent to the easement are not objects for this rule (Va. Code § 55.1-305). Unless a contract says otherwise, the owner of land crossed by a private road or right-of-way may put up gates where fences meet it, subject to court-ordered changes (Va. Code § 33.2-110), and courts decide whether objects within an easement of defined width must be removed by looking at the deed's purpose and whether they unreasonably interfere (Thibault Enterprises, LLC v. Yost, 2026).

Can a Virginia landowner move an easement?

Without a written agreement, the servient owner may petition the circuit court, which must grant relocation or modification unless it would materially cause one of six listed harms, such as lessening the easement's utility or impairing safety. The servient owner pays all costs except attorney fees (Va. Code § 55.1-304(C)). This procedure, in effect since July 1, 2026, does not apply to public service, utility, telecommunications, conservation or open-space, or public-entity easements (Va. Code § 55.1-304(D)).

Can Virginia take my property for a private developer?

Outside takings for utility, common carrier and railroad services, a taking is not for public use if its primary use is private gain, private benefit, private enterprise, jobs, tax revenue or economic development, except to eliminate a public nuisance on the property, and the condemnor must prove public use (Va. Const. art. I, § 11). Blight takings require that the property itself be blighted (Va. Code § 1-219.1).

How is just compensation calculated in Virginia?

Just compensation is no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking (Va. Const. art. I, § 11). The commissioners or jury fix the value taken and damages to the remainder beyond any specific enhancement, which cannot be offset against the value taken (Va. Code § 25.1-230(A)); lost profits must meet the conditions of § 25.1-230.1.

How long does a Virginia owner have to respond to a condemnation petition?

21 days after service to file an answer raising any objection to the taking or to the court's jurisdiction and to elect commissioners or a jury (Va. Code § 25.1-213). Failing to file bars objections to the taking unless the court extends the time for good cause, but the owner may still present evidence of value and damage and share in the award (Va. Code § 25.1-214).

Does Virginia pay attorney fees in eminent domain cases?

In listed cases, including when a petitioner dismisses after the compensation trial has begun (Va. Code § 25.1-249), when a state agency's condemnation is defeated or abandoned (Va. Code § 25.1-419), when an owner wins an inverse condemnation claim against a state agency (Va. Code § 25.1-420) and when an owner petitions after a certificate taking (Va. Code § 25.1-318). State agency includes any person with eminent domain authority under state law (Va. Code § 25.1-100). A pre-trial dismissal brings only trial-preparation expenses (Va. Code § 25.1-248). The cost rule for awards 25 percent or more above the initial written offer is discretionary, excludes attorney fees and does not apply to utility or railroad takings of less than a fee simple under $10,000 (Va. Code § 25.1-245.1).

How long do you have to sue for inverse condemnation in Virginia?

The Supreme Court of Virginia applied the three-year limitation period now in Va. Code § 8.01-246(A)(4) to an inverse condemnation action in Richmeade, L.P. v. City of Richmond (2004).