4.3 Virginia Property Rights and Ownership
Key Takeaways
- Virginia recognizes tenancy in severalty, tenancy in common (the default), joint tenancy (requires express survivorship language), and tenancy by the entirety (married couples only)
- Tenancy by the entirety shields the home from a creditor of only one spouse and passes automatically to the survivor
- Virginia is an equitable-distribution state for divorce, not a community-property state
- The homestead exemption now protects up to $50,000 of equity in a principal residence, plus $5,000 general ($10,000 if 65+) and $500 per dependent
- Adverse possession and standard prescriptive easements both require 15 years of open, notorious, continuous, hostile use in Virginia
Forms of ownership in Virginia
Sole ownership (tenancy in severalty)
One person or entity holds the entire title with full control. There is no survivorship; at death the property passes through the owner's estate (by will or, if none, by intestate succession).
Co-ownership types
| Type | Who | Survivorship | Shares | Creditor reach |
|---|---|---|---|---|
| Tenancy in common (TIC) | Any 2+ owners — the default | No | May be unequal | A co-tenant's creditor can reach that share |
| Joint tenancy (JT) | Any 2+ owners | Yes — but only if expressly stated | Equal | Creditor can sever and reach a share |
| Tenancy by the entirety (TBE) | Married couples only | Yes (automatic) | Indivisible whole | A creditor of one spouse alone cannot reach it |
Virginia default rule: If a deed names two owners without survivorship language, Virginia presumes a tenancy in common. To create a joint tenancy you must add words such as "as joint tenants with right of survivorship" (often abbreviated JTWROS). This reverses the old common-law presumption and is a favorite exam point.
Joint tenancy and the four unities
A valid joint tenancy historically requires the four unities — unity of Time, Title, Interest, and Possession (mnemonic: T-TIP). If one joint tenant conveys their interest, the joint tenancy is severed as to that share, which becomes a tenancy in common with the remaining owners.
Tenancy by the entirety
TBE is available only to a married couple and treats them as a single legal owner. Key consequences:
- A creditor of one spouse only generally cannot force a sale or attach the property — strong asset protection.
- The survivor takes the entire property automatically at the first spouse's death, outside probate.
- It can be severed only by joint conveyance, divorce, or death. A divorce converts a TBE into a tenancy in common.
Marital property: equitable distribution
Virginia is an equitable-distribution state, not a community-property state. On divorce, a court divides marital property in a manner that is fair, though not necessarily equal (50/50), weighing statutory factors such as each party's monetary and non-monetary contributions and the duration of the marriage.
| Concept | Virginia rule |
|---|---|
| Division standard | Equitable (fair), judge has discretion |
| Marital property | Acquired during marriage — subject to division |
| Separate property | Owned before marriage / by gift or inheritance — generally stays separate |
| Community property? | No — that is a different system used by other states |
Worked scenario: A spouse buys an investment condo during the marriage using marital earnings. On divorce, even if only that spouse is on the deed, the condo is marital property subject to equitable distribution; the court may award the other spouse a fair share or order a sale and split the proceeds, weighing each party's contributions.
Homestead exemption
The Virginia homestead exemption (Va. Code Title 34) protects equity from most unsecured creditors — it is a creditor-protection tool, not a property-tax break. The principal-residence amount was substantially increased in recent legislation.
| Component | Amount |
|---|---|
| Principal residence equity | Up to $50,000 |
| General property (any householder) | Up to $5,000 |
| Householder age 65 or older | Up to $10,000 (general) |
| Each dependent | Additional $500 |
Exam note: Older materials still say $25,000 — the principal-residence cap is now $50,000, and the statute provides for inflation adjustments going forward. The homestead exemption does not stop a mortgage foreclosure or a tax sale, because those involve liens the owner agreed to or owes; it shields equity from general (unsecured) creditors.
Easements and encumbrances
| Easement type | Description |
|---|---|
| Appurtenant | Benefits an adjoining parcel (the dominant estate); runs with the land |
| In gross | Benefits a person or company (e.g., a utility line), not a parcel |
| By necessity | Granted to access a landlocked parcel |
| Prescriptive | Acquired by long adverse use |
Prescriptive easement and adverse possession — both 15 years
Virginia uses a 15-year period (not 20) for both doctrines. To gain title by adverse possession, possession must satisfy all six elements — a useful mnemonic is ANCHOR (Actual, Notorious/Open, Continuous, Hostile, Open, Real — i.e., exclusive and visible):
| Element | Meaning |
|---|---|
| Actual | Physical use/occupation of the land |
| Open & notorious | Visible enough that an owner should notice |
| Exclusive | The claimant, not the public, controls it |
| Hostile | Without the true owner's permission |
| Continuous | Uninterrupted for 15 years |
A prescriptive easement requires the same elements except exclusivity — it grants a right to use (e.g., a shared driveway), not ownership.
Restrictive covenants
Privately created restrictive covenants (often through an HOA declaration) run with the land if recorded, touch and concern the land, and were intended to bind successors. They cannot be enforced if they violate fair housing law (e.g., historic race-based covenants are void and unenforceable).
Exam note: Restrictive covenants are private limits enforced by neighbors or an HOA, while zoning is a public limit enforced by local government. When private covenants and public zoning conflict, the more restrictive rule controls.
Common-trap summary for ownership
| If the exam asks... | Remember |
|---|---|
| Default co-ownership with no survivorship words | Tenancy in common |
| Married couple, creditor of one spouse | Tenancy by the entirety protects it |
| Divorce property division | Equitable distribution, not 50/50 community property |
| Adverse possession / prescriptive easement period | 15 years in Virginia |
| Principal-residence equity shielded from general creditors | Up to $50,000 homestead exemption |
A married couple in Virginia takes title to their home "as tenants by the entirety." A creditor obtains a judgment against the HUSBAND alone for an unpaid personal credit card. Which is correct?
A Virginia deed conveys property to two unmarried business partners and says nothing about survivorship. How is title held, and what happens when one partner dies?
For how many years must adverse use continue to establish adverse possession or a standard prescriptive easement in Virginia?