Real Property: Lack of permission is an element of an adverse possession claim

Where the circuit court held permissive use should have been pleaded as an affirmative defense to adverse possession, it erred. The plaintiffs bore the burden of proving each element of adverse possession, including that such possession was hostile (and thus without permission).

Background

David Tidwell and Rachael D. Tidwell and Kenneth M. Goldsmith and Ashley C. Overman-Goldsmith both appeal from the judgment of the circuit court concerning the ownership and use of certain easements.

Adverse possession

The Goldsmiths argue “The trial court erred by finding that in this particular case, permissive use should have been pleaded as an affirmative defense to adverse possession.” The Goldsmiths also argue, “The trial court erred by refusing to grant the Goldsmiths leave to amend the Amended Complaint to include an argument of permissive use to defend against the claim of adverse possession.”

While Virginia courts have not directly addressed whether permission is an affirmative defense to a claim of adverse possession, the Virginia cases touching on this issue tend to indicate that permission is not an affirmative defense to an adverse possession claim. Because the Tidwells were the first party in this matter to claim adverse possession, the Tidwells therefore bore the burden of proving each element of adverse possession, including that such possession was hostile (and thus without permission).

Therefore, the circuit court erred in ruling that permission had to be pled by the Goldsmiths here. Consequently, this matter is remanded to the circuit court for a full hearing on the merits of the adverse possession claim.

Easements

The Tidwells challenge the circuit court’s ruling that the Goldsmiths were not required to remove their trash hut from the easement, that the Tidwells are not permitted to temporarily park within the easements and that the Goldsmiths were not required to tear down the portion of their metal fence located on the northern border of the Tidwells’ 15-foot easement.

Because the granted easements in this case are for the express purpose of ingress and egress and because parking within the easement area differs from that express purpose, neither party can park within the easements. The Goldsmiths also cannot place their trash hut or other debris within the easements.

Thus, the circuit court’s ruling that neither party can use the easements for parking is affirmed. However, the circuit court’s ruling that the Goldsmiths did not need to remove the trash hut that they had placed in the easement is reversed and remanded.

Next, the Goldsmiths do not need to remove the portion of their metal fence that is on the northern border of the 15-foot easement. The Tidwells did not provide any evidence showing that the Goldsmiths’ metal fence obstructed or otherwise interfered with their use of the easement for ingress and egress.

Furthermore, the Goldsmiths’ metal fence simply does not amount to “a material encroachment on the dominant owner[’s] rights” because the fence is located entirely on the Goldsmiths’ land (or right on the Goldsmiths’ property line with the Ozmers)—and because there is no evidence that the fence has in any way prevented the Tidwells from using the easement for ingress and egress.

Finally, the Goldsmiths argue “the trial court erred by finding that the Tidwells’ 60’ easement extends south of the intersecting 15’ easement.” The court disagrees. Because the plain language of the deed refers to two separate easements and because the plat attached to the deed shows the 60-foot easement extends “over, along and across” the 15-foot easement, the circuit court did not err in its interpretation of the scope of the 60-foot easement.

Affirmed in part, reversed and vacated in part and remanded in Record No. 0629-24-1. Affirmed in part and reversed and remanded in part in Record No. 0666-24-1.

Tidwell v. Goldsmith, Record Nos. 0629-24-1, 0666-24-1, July 1, 2025. CAV (Beales). From the Circuit Court of the City of Williamsburg and County of James City (Smith). S. M. Franck (Geddy, Harris, Franck & Hickman, L.L.P., on briefs), for David Tidwell and Rachael Tidwell. Ivan D. Fehrenbach (Dansby & Fehrenbach, on briefs), for Kenneth M. Goldsmith and Ashley Overman-Goldsmith. VLW 025-7-166. 24 pp.