Legal Question in Real Estate Law in Virginia

I am purchasing a home in prince William county, va. The backyard is rather shallow because the neighbors driveway goes across the backyard and the previous owners placed a fence on the property I am purchasing along the inside edge of the driveway. Effectively, this fence and driveway reduces the size of my back yard by 0.1 acres as well as reduces its privacy and functionality. It also results in the neighbor having de facto control of a portion of my property, including some land on the other side of the driveway. I also noticed while doing the home inspection that the neighbor had cut down a couple hardwood trees in what may be the property I am purchasing and had stacked the wood for firewood. Looking at the aerial photo and map (the survey is underway), it looks like the neighbor could have easily established a driveway on their own property, and one that would have been shorter, more level, and easier to maintain, if not as aesthetically pleasing. I am wondering if this driveway was established within a right of way as part of the development of the neighborhood and what recourse I might have to reclaim that area. I don't want to create a hardship for the neighbor, but I would also like to be able to use my entire backyard. Can I reclaim the entire backyard and remove the driveway? If not, can I move the fence to the edge of the property (along the outside of the driveway) to clearly delineate my property and at least use the driveway area and the parts of my property on the other side of the driveway?


Asked on 7/31/10, 5:20 pm

1 Answer from Attorneys
Michael Hendrickson Law Office Michael E. Hendrickson

The deed for the property you intend to purchase as well as the neighbor's need to be scrutinized to determine whether there is a reference to this driveway as an easement burdening your property which should be evident from the title search (which hopefully is also underway). However, if the title search turns up no evidence of such an easement, then further probing into the chain of title and, perhaps, some questioning of the neighbor as to his knowledge of the history of this easement would appear to be in order before you finalize your purchase transaction.

And, yes, you should be able to move the referenced backyard fence to just inside wherever the new survey shows the property line to be.

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Answered on 8/05/10, 6:50 pm


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