Virginia Appellate Decisions Highlight Permission in Adverse Possession Cases

By Jeffrey R. Fox, Esq.

Rosenberg& Associates, LLC*

USFN Member (DC, MD, VA)

Both the Virginia Court of Appeals and the Supreme Court of Virginia have recently handed down decisions illustrating the role of permission in adverse possession cases. The Court of Appeals case is Veldhuis v. Abboushi, Record No. 0776-22-4, May 9, 2023; while the Supreme Court case is Horn v. Webb, 882 S.E.2d 894 (Va., September 14, 2022).

               The Veldhuis decision stems from a boundary dispute in the city of Alexandria. Claimant Abboushi had long cultivated a garden in what they believed to be part of their yard. This belief was based on the assertion of their neighbor, the predecessor in interest to Veldhuis. The Court of Appeals upheld the trial court’s decision in favor of Abboushi’s claim of adverse possession. Central to both courts’ decisions was a drainage pipe that had been placed by Veldhuis’ predecessor under a boundary wall. The wall (as well as several other improvements) had been constructed by the claimants and before placing the pipe, the predecessor had asked and received their permission. Veldhuis asserted that the pipe, inserted for mutual benefit, invalidated the claim by making Abboushi’s possession non-exclusive. The Court of Appeals held that the act of asking permission demonstrated that their possession was exclusive.

“Joe’s (the predecessor) permissive use of the disputed area does not defeat the Abboushis’ claim of exclusive possession, as it is well within the right of the possessor of land to grant or deny access to the land as he or she sees fit. The operable question here is whether Joe used the land as the rightful owner; as his use as a licensee or invitee would not affect the Abboushis’ exclusive possession.” Velduis, p.8.

               In the Horn decision, the Supreme Court looks at the duration of permission. The case involves a landlocked neighbor attempting to establish a prescriptive easement to moor a boat off of an adjoining property. The Horns, or their predecessor in title, had obtained permission to do so from a previous owner of the Webb’s property. That previous owner sold the property in 1970, and there was no evidence that any of the subsequent owners had given the same permission. Overturning the trial court’s ruling, the Supreme Court held that the permission had ended when the property was sold in 1970 and that subsequent owners would have had to each grant permission. Thus, the Horns’ use had been “hostile” since 1970 and their prescriptive easement established.

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June 2023 USFN e-Update