Have Legal Questions? Ask a Lawyer Now.
What you would be looking at is the possibility of claiming the right of an easement, whether an "easement by necessity", an "easement by prescription", or possibly an "easement by implication".
A good starting point is to review the guide at this website (title "Easement for Dummies"): http://www.vsb.org/sections/rp/articles/gregory.html This paper does a nice job of presenting on the basic underlying concepts at issue. (This paper is especially useful to review in your case because the author is from Virginia and uses Virginia cites in his examples.)
The issue of being landlocked falls to the concept of a possible "Easement by Necessity": Easements by necessity (also sometimes called quasi-easements) are really in a subcategory of easements by implication. They arise to prevent property from being landlocked by the actions of the owner of the tract. In order to qualify for an easement by necessity, the to-be-dominant estate must show that the severance of the tract previously commonly owned with the servient estate created the need for access to a public road. In other words, the plaintiff must prove that at one time in the past, the dominant and servient tenements were owned by the same person. See Middleton v. Johnston, 221 Va. 797. Thus, drawing on the definition of easements by implication, the conveyance of land carries with it whatever is necessary for the beneficial use of the property. (From "Easements for Dummies")If your property was originally part of one large parcel that also included one or both of the parcels between you and the road, then you would have a key fact in line for an Easement by Necessity.
The Easement by Implication is similar, and it again requires that your properties were once all part of the same larger property. "Whether or not an easement by implication exists will depend on the facts and circumstances unique to each case. The established rule is that the conveyance of property carries with it an implied easement for any use that is reasonably necessary for the enjoyment of the property conveyed, and is continuous, apparent, and in existence at the time of conveyance" (Id.)
Here is another definition: "Easement by implication - an easement that is created by operation of law when an owner severs property into two parcels in such a way that an already existing, obvious, and continuous use of one parcel (as for access) is necessary for the reasonable enjoyment of the other parcel"See http://research.lawyers.com/glossary/easement-by-implication.html
The Prescriptive Easement would be your last resort. "Refraining from the obvious, a prescriptive easement is similar to acquiring title by adverse possession. It arises from continuous use, and must meet the same heavy standards before a court will order its existence. The use must be adverse, under claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the fee owner of the servient estate, all over a period of 20 years (in Virginia)." (from Easement for Dummies.)
But here is the problem with that avenue: "If the use of the easement is permissive, no right to prescription can arise, no matter how long the permissive use continues. When the use originates by permission, it is presumed to continue with permission." Id. It seems from your scenario that the use of this road has been permissive.
Hopefully the facts in your case line up with an Easement y Implication, or if necessary an Easement by Necessity.
I hope this has helped. Let me know if you have any followup questions. If none, please remember to click on the ACCEPT link so that I may receive credit for working on this topic with you. (I’d greatly appreciate it!)Thank you,Dan--------------The information provided is general in nature only and should not be construed as legal advice or to create an attorney-client relationship. You should always consult with a lawyer in your state.PS: If an answer appears to you to have been very helpful, or to have taken above average expertise and/or research, or if the answer shows an above average amount of time and dedication devoted to your issue, a bonus is nice way to say “Thank you”. Thanks!
Educator, Esq: Follow up question: Is the following
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).