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Fairfax County Case Determines Easement Holder Rights

*** There are new developments regarding the waterfront property law issues discussed in this article.  Click here to read the update. ***

History of Lake Barcroft Subdivision Lot Owners

The Fairfax County Circuit Court decided an important riparian property rights case on June 7, 2020 (Rustgi v. Webb, 2020 Va. Cir. LEXIS 81). There, three lot owners in Barcroft Lake Shore subdivision recorded an easement in 1966. An easement allows others to use or enter a property without owning it. Lot 612 touched the lake, which made it riparian. Lots 613 and 615 did not touch the lake, were not riparian, but the owners of those two lots wanted access to the lake. To provide this access, the owners of the three lots recorded the easement which created a 20 foot wide corridor through lot 612 for ingress and egress (i.e. entry to and exit from the lake). The easement allowed the owners of Lots 613 and 615 to access the lake by travelling through Lot 612.

The easement was recorded in 1966. The original parties to the easement were friendly with one another. They cooperated in building a retaining wall at the shoreline, an electrical outlet (that, it turns out was outside the easement corridor) and the owner of lot 613 docked a very large pontoon boat at the retaining wall. The pontoon boat was so large that it blocked the owner of lot 612 from reaching the water from his property. Lot 613 was sold in 2013 and for the next few years the new owner of Lot 613 was able to use the water in the same way as the prior owner. Things changed in 2017 when Lot 612 changed hands. This lawsuit started after the new owner of Lot 612 told the new owner of Lot 613 to remove his boat, remove the electrical outlet, and limit use of the easement to ingress to and egress from Lake Barcroft.


Case Outcome Determines Easement Holder Rights

The owners of Lot 613 argued that the prior owner and they (the current owner) had docked their boat and used the electrical outlet for a very long time (more than 50 years). They contended that this long period of use gave them a “prescriptive” easement, which is the type of easement that can arise under Virginia law when someone uses another person’s property without permission for at least 20 years. The Court disagreed because the evidence showed that the owner of Lot 612 had given permission.

Next, the owners of Lot 613 said that the owners of Lot 612 gave away their riparian property rights when everyone entered into the easement agreement. The Court rejected this argument because there was no language in the easement clearly stating that the owner of Lot 612 was transferring his valuable riparian rights to the owner of Lot 613, plus there was no language in the easement agreement that established a transfer of those rights “by clear implication”.

The court decided the owner of Lot 613 must discontinue docking his boat and remove the electrical outlet.

What Does This Mean For Future Easement Holders?

Easements can, in some cases, transfer riparian rights. This is one reason (among many) why you should get help from a riparian property rights attorney before purchasing waterfront property or agreeing to an easement at your waterfront property. Feel free to contact our experienced riparian rights law team.

About The Author

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Jim uses waterfront (riparian) property rights law, maritime & admiralty law, and environmental law to protect Virginians who live, work and play on the water. Contact Jim at (757) 502-7326 or jlang@pendercoward.com.