Can a Property Owner Block an Easement?
October 18, 2023 | By: Dunlap Bennett & Ludwig
There are several kinds of easements, but the one most people are familiar with is an easement for “ingress and egress.” These kinds of easements are typical when a lot is subdivided and only one lot has public road access, when a shared driveway is established, or maybe when formerly friendly neighbors allow a second driveway across their land. Over time, how neighbors use and view these access easements can change, and disputes will arise.
What is an Easement?
An easement is created when one landowner establishes a right to use adjacent land in a limited manner. The owner with the right to use the easement is referred to as the “dominant estate” while the owner whose land the easement passes through is the “servient estate.”
Some easements merely prevent the servient estate from taking a specific action, such as blocking a view or building new structures, and are “negative easements.” More typically, an “affirmative easement” allows the dominant estate to use the easement in a specific way. The servient easement is generally not permitted to interfere with an affirmative easement right. However, having an easement right over another’s land is not the same as ownership, and there are a variety of ways the easement can be terminated and lost forever.
Competing Easement Rights
Sometimes homeowners want to understand if they can remove an easement from their property or can a property owner block an easement. If the intent is to prevent or obstruct the use of the easement, the answer is probably no.
In Virginia, a specific statute addresses this last point. Virginia Code § 33.2-110 allows an owner “over which another or others have a private road or right-of-way may, except when it is otherwise provided by contract, erect and maintain gates across such roads or right-of-way at all points at which fences extend to such roads on each side thereof.” However, this is not the end of the issue.
The Virginia Court of Appeals recently clarified that this statute does not declare open season on access easements or authorize the servient estate to install gates without restriction.
In Forbes v. Cantwell (published on September 12, 2023) the Virginia Court of Appeals considered the case of two neighbors fighting over the scope of a “40-foot” easement, which contained a driveway and a “fencing and landscape buffer.” The dispute included disagreements over how the easement would be used but also involved the servient estate owner installing a gate across the driveway.
At trial, the Circuit Court had ordered the gate removed. The Court of Appeals agreed but clarified that a gate could be installed if it was purely for the dominant estate’s “use and convenience.” The Court also specified that any gate must “remain unlocked and must be able to be easily opened and closed.” In its ruling, the Court also cited an earlier case that prohibited the installation of a gate across only a portion of the easement area, indicating any new gate must span the entire 40-foot easement area, not only a small part of it.
The Forbes v. Cantwell decision also touched on another frequent theme in easement disputes: how the easement is used. Easements must be used for their stated purpose, and the use must be reasonable. Some reasonable variation of the use is allowed, though any change in how the easement is used must not create an “additional burden” on the servient estate. This means a changed or expanded use may be allowed if the change is an increase in traffic traveling over an easement. Conversely, the law would likely not allow the dominant estate to install cell phone towers in an easement that was otherwise only used for “ingress and egress.”
Even if the owner changes how they use their easement in such an extreme way, abuse of the easement does not necessarily lead to termination of the easement. Instead, the servient estate may be entitled to damages or an injunction to stop the expanded use.
The Forbes v. Cantwell opinion is a good example of how a seemingly simple easement issue can become seriously complex. Resolving an easement dispute is not just a matter of pointing to a plat and claiming “my driveway is here.” There are often surveys required, experts that get involved, and potentially a long history that must be understood and untangled. Consulting an attorney early is always advisable for these kinds of cases.
Dunlap Bennett & Ludwig has decades of experience litigating commercial and residential real estate issues. We use practical and proactive approaches that help our real estate clients avoid litigation when that is possible and protect their interests when it is not. To learn more about Dunlap Bennett & Ludwig and how we can help you, call today at 800-747-9354 or email us at clientservices@dbllawyers.com.
