Henrico, VA asked in Land Use & Zoning and Real Estate Law for Virginia

Q: Can heirs of an original owner claim a portion of land which was reserved from a deed conveying the balance of the land?

John Doe died in 1877, leaving 120 acres of woodland. The land was sold by special commissioner, the deed reserving an old burial plot, about 70 x 70'. The new owner sold the land in parcels, one of which included the burying ground. The land was sold and resold several times without mention of the reservation of the burial ground. It was not developed until 1957 by the current owner, at which time the burial ground was noted on the plot plan and was still enclosed by the original brick wall. The ground was not maintained and now serves as an unofficial public entrance and walkway into the property [and has done so for many years]. A portion is used as a yard debris dump by an adjoining neighbor. Can the heirs of the original owner claim title?

1 Lawyer Answer
Richard Sternberg
Richard Sternberg
  • Real Estate Law Lawyer
  • Potomac, MD
  • Licensed in Virginia

A: Of course, the heirs can claim title. In most circumstances, I would then reiterate the teachings of a professor of mine from Penn, and I'd say that any idiot can make a claim if they have a pen, paper, and the filing fee. Usually, prospective clients want to know if they can win, and can be a different question. In this case, however, making the claim may be quite effective, particularly if the objective is to ensure that the respect due to a family gravesite is protected. The chances of being able to re-take and build on or otherwise profit from the recovered 70' X 70' site is much more remote, but a credible demand from a lawyer who appears ready to file suit might be quite sufficient incentive to adjust the behavior of the current owners. Before anyone can really answer your question, a lawyer needs to read the grant and the reservation and then research how adverse possession affects the case. I strongly suspect that adverse possession does not apply since the subsequent possessors seem to miss all of the key elements. If adverse possession and laches do not apply, the title might well revert to the grantor.

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