Key Takeaways
- Virginia recognizes tenancy in common, joint tenancy (with express survivorship language), and tenancy by the entirety
- Tenancy by the entirety is available only to married couples and provides creditor protection
- Virginia is an equitable distribution state for divorce, not community property
- Homestead exemption in Virginia protects up to $25,000 of equity from creditors
- Virginia recognizes easements, restrictive covenants, and other property interests per common law
Virginia Property Rights and Ownership
Important: This content covers Virginia-specific property law. You should complete the National Real Estate Exam Prep first, as general property concepts are tested on the national portion.
Virginia follows common law principles for property ownership with some state-specific provisions.
Types of Property Ownership
Individual Ownership (Tenancy in Severalty)
One person holds title:
- Full control over property
- No survivorship rights (passes through estate)
- Most common for single individuals
Co-Ownership Types
| Type | Key Features |
|---|---|
| Tenancy in Common | Default, unequal shares allowed, no survivorship |
| Joint Tenancy | Must expressly state survivorship, equal shares |
| Tenancy by the Entirety | Married couples only, creditor protection |
Joint Tenancy in Virginia
Virginia recognizes joint tenancy but requires specific language to create it:
- Must expressly state "with right of survivorship" or similar language
- The "four unities" (time, title, interest, possession) required
- If one joint tenant sells, joint tenancy is severed
Default Rule: Without specific survivorship language, co-ownership is presumed to be tenancy in common.
Tenancy by the Entirety
Available only to married couples:
- Both spouses must join in conveyance
- Creditor protection from individual debts
- Automatic right of survivorship
- Requires divorce or death to sever
Marital Property Rights
Equitable Distribution State
Virginia is an equitable distribution state (not community property):
| Feature | Virginia Rule |
|---|---|
| Division method | Equitable (fair, not necessarily equal) |
| Court discretion | Yes, based on factors |
| Separate property | Generally remains separate |
| Marital property | Subject to division |
Homestead Exemption
Virginia offers a homestead exemption that protects certain equity from creditors:
Virginia Homestead Exemption
| Feature | Detail |
|---|---|
| Amount | Up to $25,000 of equity |
| Additional | $500 per dependent |
| Eligibility | Virginia residents |
| Purpose | Protection from creditor claims |
Note: This exemption is from creditors, not for property tax purposes. Virginia does not have a property tax homestead exemption like some states.
Easements and Encumbrances
Easements in Virginia
| Type | Description |
|---|---|
| Appurtenant | Benefits adjoining land, runs with land |
| In Gross | Benefits person or entity, may not transfer |
| Prescriptive | Created by adverse use (15 years in Virginia) |
| By Necessity | For landlocked parcels |
Prescriptive Easement Requirements
To establish a prescriptive easement in Virginia:
- 15 years of continuous use (not 20)
- Use must be open and notorious
- Use must be adverse (without permission)
- Use must be continuous
Restrictive Covenants
Virginia enforces restrictive covenants that:
- Run with the land
- Are recorded in property records
- Do not violate fair housing laws
- Have a reasonable purpose
Adverse Possession
Virginia allows adverse possession after 15 years of:
| Requirement | Description |
|---|---|
| Actual | Physical possession and use |
| Open | Visible to the owner |
| Notorious | Known to others |
| Exclusive | Claimant has exclusive control |
| Hostile | Without owner's permission |
| Continuous | Uninterrupted for 15 years |
How long must continuous adverse use occur to establish a prescriptive easement in Virginia?
What is the Virginia homestead exemption amount?