By Clark J. Belote, James L. Windsor, Real Estate Claims & Title Insurance Solutions

Yesterday, the Court of Appeals of Virginia held that when a deed conveys “all that certain tract or parcel of land, consisting of a . . . right of way,” that right of way is conveyed in fee simple, not as an easement. In Biller v. Morrow, the sole dispute was whether a deed conveyed a private lane as an easement or in fee simple. Recognizing the construction of the intent of the parties in a deed is ripe for summary judgment and relying on the precept that “[w]hen construing a deed, we are required to ‘give effect to the parties’ intention as expressed by them in the words they have used.’” Slip Op. at 4 (quoting Wetlands Am. Tr., Inc. v. White Cloud Nine Ventures, L.P., 291 Va. 153, 160 (2016)), the Court of Appeals placed great emphasis on the “consisting of” language in the deed.

It noted:

Although the term “right of way” is generally used to “describe a right belonging to a party to pass over land of another,” Ryder v. Petrea, 243 Va. 421, 423 (1992) (quoting Right of way, Black’s Law Dictionary (6th ed. 1990)), the Supreme Court has, in some cases, found that what appeared to be a right of way can in fact be a conveyance in fee simple because a “right of way” may “be accomplished by the granting of a fee simple interest, as well as by the granting of an easement,” Bailey, 279 Va. at 633. Thus, in some cases, using the term “right of way” can simply be “descriptive of” part of the property conveyed in fee simple.
 
Here, it held the private road was conveyed in fee simple as part of the property which “consisted” of the right of way – the private road. 
 
If you have any questions regarding this new appellate opinion concerning rights of way, or questions regarding Virginia real property law in general, please contact Jim Windsor at (757) 873.6308 or jlwindsor@kaufcan.com, or Clark Belote at (757) 624-3109 or cjbelote@kaufcan.com.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2025.