Real Property: Ejectment statute of limitations doesn’t apply to declaratory judgment

Where a party sought a declaratory judgment that an easement was void, the circuit court erred when it held the suit was barred by the 15-year statute of limitations for ejectment actions. The movant was not seeking to remove the other party from possessing the property.

Background

The question here is whether Code § 8.01-236’s 15-year statute of limitations for ejectment applies to an action seeking a declaration that a recorded easement, which gives a right of access over property, is void. The circuit court that Code § 8.01-236’s 15-year statute of limitations barred the complaint “because the substance of the complaint [was] an adjudication of title or possession of real property subject to the interest of another.”

Analysis

Root argues that the circuit court was incorrect to apply the ejectment statute of limitations because Root was not seeking to remove Kok from possessing the property, but rather sought a declaration that the easement was void. In a declaratory judgment action, the applicable “statute of limitations is governed by the object of the litigation and the substance of the complaint, not the form in which the litigation is filed.” For this reason, the circuit court was correct to assess the object of the litigation and its applicable statute of limitations.

“Ejectment is an action to determine the title and right of possession to real property.” Unlike a question of property ownership, the Supreme Court has explained that an easement is a “privilege to use the land of another” and that “[t]he existence of an easement is not relevant to the issue of title.” So whatever party brings an ejectment action, it can only resolve questions of ownership. The history of ejectment and the action as codified in Virginia confirms this conclusion.

For these reasons, the trial court erred by treating ejectment as the underlying cause of action in Root’s declaratory action. It is undisputed that Root possesses the entire property and owns the entire interest in the property. An ejectment action could only affirm the same. There is nothing the sheriff could physically deliver that would resolve whether Kok has a right of way over part of Root’s property.

Likewise, in pleading the statute of limitations here, Kok was not “reasserting his adverse possession claim and seeking ownership” of the disputed property. Instead, Root pleaded that Kok had asserted a right to cross Root’s property using an easement that (according to Root) does not exist. In other words, Root appears to seek declaratory relief to prevent a trespass from taking place, or equitable relief to remove a cloud of title.

The fact that the statute of limitations for ejectment does not apply here does not, however, mean that Root’s declaratory judgment action is temporally unbounded. The Supreme Court has repeatedly affirmed that statutes of limitation cannot be “rendered meaningless” through the declaratory judgment mechanism.

Assuming the complaint adequately sets forth a request for declaratory relief to prevent a trespass (or to remove a cloud on title), the court would need to determine when the appropriate cause of action accrued. This fact-finding is a matter for the trial court if the parties properly present additional statute of limitations arguments on remand.

Reversed, vacated and remanded.

Root v. Kok, Record No. 1636-24-4, Oct. 21, 2025. CAV (unpublished opinion) (Lorish). From the Circuit Court of Loudoun County (Fleming Jr.). Stephen C. Price (Theresa D. Small; Caitlyn M. Bender; McCandlish & Lillard, P.C., on briefs), for appellants. Nicholas V. Albu (The Albu Firm PLLC, on brief), for appellees. VLW 025-7-300. 12 pp.