Virginia Real Estate Law: What Are Easement Disputes?

If you own land or a house in Virginia there is a good possibility that you will eventually have some kind of land dispute with your neighbor. There are many different types of land disputes that can come up. These include new constructions that you disagree with, unauthorized use of your land or driveways, your neighbor building something that overhangs your land or even your neighbor interfering with the sale of your land.

The first type of dispute you need to be aware of is an easement dispute. So what is an easement dispute, and why do you need a lawyer?

What is an Easement?

An easement allows your neighbor or someone else to use a portion of your land for a limited purpose. For example, perhaps your backdoor neighbor needs to use your driveway to get to their property or the utility company may want to lay new lines. 

Easements are typically placed in documents known as “boundary line adjustments” or “deeds of dedication.” They are limited in size, length and use. A common driveway easement is either 30 feet wide or 50 feet wide, whereas a utility easement can be much smaller.

Can you make changes to an easement without permission?

No, if the person you purchased your land from gave an easement to someone else before you bought the land, you are stuck with it. You cannot take any steps to interfere with the easement. You cannot place new gates or checkpoints on the easement, you cannot place buildings within certain distances from easements, and there are other restrictions depending on where you live?

What are the common types of easement disputes?

The most common easement dispute is that someone puts a gate over an easement they have the right to use. However, easement disputes can come in many different types. An easement dispute is any dispute where someone is interfering with the use of the easement.

Why do you need a real estate lawyer?

Easement disputes are complicated, and often require hiring an expert witness to read the title documentation and view the property. If you are not careful and do not hire the appropriate witnesses and put on the right evidence, you will lose your easement dispute case. Lawyers can also negotiate reasonable resolutions to easement disputes.

Easement disputes are typically handled by pursuing the claim in the Circuit Court where the land is located at. The case is initiated through filing a complaint asking that the court resolve the pending land dispute. There are strict standards for what must be included in that complaint that a lawyer can help you with.

Therefore, if you have an easement dispute, hire a lawyer.

Virginia Real Estate Law: What Types Of Lawsuits Are There?

If you own or share real estate with another person, there is a decent chance you will have a property dispute with that person at some point. Virginia law provides for specific types of lawsuits that deal with real estate disputes. Common types of disputes include; one person wanting to sell the property but the other wanting to hold it, relatives requesting compensation for improving the value of the property, and disputes as to who actually owns the property.

So how are these disputes brought to the court, and what are some things the court will consider in dealing with these disputes?

Quiet Title Lawsuit

The first type of lawsuit dealing with real estate is known as a “quiet title” action. The reason this type of lawsuit is called quiet title is because you are “quieting” disputes over who holds the title to the land. For example; there may be a dispute over whether someone had the authority to sell a piece of land, or whether they intended to sell the land to one person instead of another.

A quiet title lawsuit is brought in the circuit court where the property is located. In a quiet title lawsuit, the parties are attempting to convince the judge that they have a better right to own the property than the other person. A judge in a quiet title action is trying to determine who actually owns the property. Judges will often consider the chain of title, who sold the property to whom, and compensation.

Partition Lawsuit

The second type of lawsuit dealing with real estate is known as a “partition lawsuit.” This type of lawsuit happens when two people own a piece of real estate. One of the parties may want to sell the property, but the other person wants to continue living there. If the two are unable to divide the property to settle the dispute, a court can step in.

In a partition lawsuit, the court is trying to determine what will happen to a piece of real estate given the nature of the dispute. Common outcomes include, but are not limited to, forcing on party to buy the other out, forcing the sale of the real estate, or forcing the parties to simply subdivide the real estate.

Declaratory Relief Action

The third type of lawsuit dealing with real estate is known as a “ declaratory relief action.” The purpose of this kind of lawsuit is to determine whether an easement, covenant, or restriction is valid. For example; if the person who owned the property prior to you put a restriction that “no shed can be built in the backyard,” then a declaratory relief action may be appropriate. Alternatively, if a neighbor had been granted access to a trail through your property, and they are now using it to run a full-time tourism business, you can challenge the use of the easement through a declaratory relief action.

In this type of lawsuit, the court needs to look at the type of easement in dispute, how the easement was created, and what has changed since the easement was created.

Why You Need a Real Estate Lawyer

Real estate law can be very complex. If you are having a dispute with another person over the use or ownership of real estate, it is important that you contact a lawyer. The lawyer will need to locate expert witnesses to support your case and track down old documentation to show how the land had previously been used. Failure to hire a lawyer in these kinds of cases may result in losing your valid claim.

Virginia Landlord Disputes: What Happens at Court?

If you have given the appropriate notice to your tenant and have filed the appropriate paperwork with the court, the next step in the eviction process involves a series of court dates. It is important to know what is required of you at these court dates in Virginia. In Virginia, there are three major types of court dates; a) the first return, b) hearings on motions and c) the trial date.

So what are these three different types of court dates?

The First Return Date

The first date you are given by the court is known as the first return date. This date is to make sure that you have filed all the appropriate paperwork to begin the case. This court date is also the time in which the court will determine whether or not your tenant has received service of process of the paperwork you have filed. Before the court can do anything, your tenant is entitled to receive a copy of the paperwork.

If your tenant has received paperwork but fails to show, you may be entitled to a “default judgment.” This means that, because they did not show up, you will not have to go through the trial process. However, if your tenant does show up, they have the right to contest the charges.

Many judges in Virginia will require the tenant to answer whether they owe any rent or not. If rent is owed, you may be entitled to a “writ of possession,” which grants you your property back. However, that is not the end of your case. Even if you are given possession, you must have a trial to determine how much money you are entitled to.

If you own an LLC or a trust, you do not need an attorney at this first return date. You do, however, need an attorney for any subsequent hearings such as a trial.

Motion Day

If the tenant hires an attorney, their attorney may file any number of different documents against your eviction proceedings. Their attorney may even file a counterclaim, or a claim for money against you. If the other side hires an attorney and files any paperwork, it is imperative that you immediately seek out an attorney. Failure to do so may result in you owing money to the tenant!

Trial Day

Eventually, if the matter is not settled, you will be given a trial date. On the trial date, you are required to prove to the court the specific grounds for which the eviction is sought (if not for failure to pay rent) and the amount of damage the tenant has done to the property.

Judges are looking for documentation to prove how much money you will need to spend to get your property back in working order and how much rent is owed. Therefore, you will need to bring with you to the trial date documents including, but not limited to, quotes for repairs, accountings of late charges and rent and photographs of the damages.

Why You Need a Lawyer

Navigating these different stages of the court process can be very confusing. If the other side hires a lawyer, their lawyer can do any number of things to make you lose your case. For example, failure to follow certain rules or to file certain documents automatically makes you lose. As stated before, if you own an LLC or a Trust you may be required to have an attorney no matter what. Therefore, you should seek out an attorney before even sending the initial notice to your tenant. 

Virginia Landlord Disputes: Documents to File With the Court

So you have gone through the first step and given your tenant the appropriate type of notice to begin the eviction process. What happens next? After the timeline in the notice has passed, and if your tenant has not vacated the property or come current on the rent, the next step is to seek court help in evicting the tenant. In Virginia, an eviction is accomplished by filing an Unlawful Detainer in the appropriate General District Court.

So what is an unlawful detainer, and what are some things you need to be aware of before it is filed?

What is an Unlawful Detainer?

Any lawsuit in Virginia starts with documentation called a “pleading.” A pleading is a document which tells the court why you are asking for a legal decision and what facts support your request for legal relief. Eviction cases in Virginia are handled through a pleading known as an unlawful detainer.

An unlawful detainer tells the court a number of different things. The unlawful detainer needs to a) identify the property where the tenant is residing, b) identify the owner of the property as the plaintiff, c) identify the tenants of the property as the defendants and d) identify any damages that you may have suffered. Damages can include, but are not limited to, past due rent and destruction of your rental property.

Is an Unlawful Detainer the Only Required Document?

No, there are several other documents that are required to be filed with the court. Failure to file these documents may cause your case to be dismissed. These documents include, but are not limited to, a “soldiers and sailors affidavit,” which tells the court whether your tenants are in the armed forces, a copy of the lease, and a copy of the notice.

Why You Need A Lawyer

If you do not file the appropriate documentation with the court, or if you do not properly fill your the documentation, your case will be dismissed. If your case is dismissed, then your tenants may be able to stay in the property for longer than you had envisioned. This can lead to lost rent and, in some cases, destruction of your property. If you are facing eviction proceedings, hire a lawyer to make sure the proper steps are followed.

Virginia Landlord Disputes: Eviction Notices

Are you a landlord with a trouble tenant? If you are, there are some laws you need to be aware of if you want to begin the process of removing the tenant from your property. The process for removing a tenant from your property is known as eviction. There are several steps that you must take in order to do a lawful eviction, and several things you should not do during that process. Failure to properly follow the eviction process may result in legal issues such as forfeiture of the security deposit, delayed evictions, or even damages for the tenant.

So what is the first step of the process, and what are some basics you need to know?

How to Give Notice

The first major part of the eviction process is giving the appropriate type of notice to your tenant. There are several different types of tenants, and each type of tenant is entitled to a different type of notice. In order to have proper notice, you need to be able to prove to the court that the tenant received the notice that you sent. This is often accomplished by having your local sheriff serve the notice, or by posting the notice on the front door. Either way, make sure you can prove that your tenant received notice, or the notice clock may not start.

Types of Notice

As previously discussed, there are several types of notices that you may need to consider depending on your unique case. The three major types of notices are the thirty-day notice, the five-day notice, and the 21-30 day notice. These types of notices are given in different scenarios. For example, failure to pay rent on a year-to-year lease is often accompanied by a five-day notice. In contrast, eviction proceedings for a tenant failing to keep the property in working condition may require a thirty-day or 21-30 day notice depending on the nature of the damage and the terms of your lease agreement.

What Happens if You Use the Wrong Notice?

Using the wrong notice can have disastrous effects on your eviction efforts. A court cannot grant you an eviction if you did not give proper notice to your tenant. The reason for the notice requirement is to allow the tenant the opportunity to cure the breach of the lease within the amount of time provided. Tenants have a right to cure certain types of breaches of the lease agreement. If you do not give the appropriate notice, then the tenant may be entitled to return of the security deposit.

Why You Need a Lawyer.

A lawyer is important to have during the eviction process because you could become personally liable for not giving the appropriate type of notice. Failure to give the appropriate notice may also result in your tenant getting extra time in your property, resulting in loss of rental income. Therefore, if you are facing a trouble tenant, make sure you hire an attorney to walk you through the eviction process.