A Virginia HOA lost its challenge to a 1995 access easement
A Virginia HOA lost its challenge to a 1995 access easement
2026-09-19 · Virginia · Courts
A Loudoun County homeowners association tried to void a thirty-year-old access easement on the ground that the person who received it was not a party to the deed, and lost. The Court of Appeals of Virginia decided Catoctin Ridge Homeowners Association, Inc. v. Biller, Record No. 0981-24-4, on March 25, 2025 in a published opinion by Judge Stuart A. Raphael, joined by Judges Friedman and Chaney.1
The decision turns on a distinction that sounds like conveyancing pedantry and is worth real money to Virginia landowners.
The stranger rule, and its limit
The opinion opens with the doctrine:
“Virginia continues to follow the common-law 'stranger' rule, sometimes called the 'stranger to the deed' rule. The stranger rule provides 'that, in a deed, a reservation or exception in favor of a stranger to the instrument does not create in the stranger any right or interest in the property being conveyed.' The stranger rule applies only to reservations and exceptions, not to express grants.” The authority is Shirley v. Shirley, 259 Va. 513, 515–18 and 520 n.8 (2000).
The association argued the trial court had defied that rule by finding a 1995 deed conveyed an express easement to an adjoining lot then owned by the appellee's mother, who was not a party to the deed. The court's answer was that the association had the doctrine right and the deed wrong: “the 1995 deed is best construed as granting an express easement, not reserving or excepting one.”
Why the grant-versus-reservation line exists
A reservation or exception holds something back out of what is being conveyed. A grant hands something over. The stranger rule is a rule about the first operation, and the reason is historical: at common law, a grantor could not carve out an interest for a third party in the act of conveying to someone else.
Nothing prevented that same grantor from simply granting the interest. As the court reiterated, quoting Bunn v. Offutt, 216 Va. 681, 684 (1976): “Easements may be created by express grant or reservation, by implication, by estoppel or by prescription.”
The practical consequence for Virginia associations is that a developer-era instrument's verbs decide the outcome. Language that creates and establishes an easement is a grant. Language that reserves or excepts one is exposed to the stranger rule. The distinction is invisible to anyone reading for substance rather than form, and it is dispositive.
The question the court expressly left open
There is a statutory overlay, and the opinion is careful about it. Shirley had noted an argument that the stranger rule was modified by what is now Code § 55.1-119, which protects third-party beneficiaries of written instruments — an interest “respecting any estate may be taken by a person under an instrument, although he is not a party to such instrument.”
In Shirley the argument was defaulted. Here, no party raised it. The court therefore said: “we likewise express no opinion on whether Code § 55.1-119 modified the stranger rule in Virginia. This qualifies as 'an important question of first impression in Virginia that should be decided only after full briefing.'”
So the stranger rule survives in Virginia with a marked question over it. Any Virginia litigant — association or owner — whose case turns on it is on notice that the statutory argument exists and has never been decided.
The attorney-fee trap
The landowner cross-assigned error on attorney fees and lost on procedure: the claim was “barred under Rule 3:25.”
Rule 3:25 requires a demand for attorney fees to be pleaded, with its basis stated, early in a Virginia civil case. It applies to associations exactly as it applies to owners. A board that has a fee-shifting clause in its declaration and does not plead it at the outset can win the case and pay its own lawyers.
The conditions that change the answer
Published. This is a published opinion of the Court of Appeals and it binds later panels.
It is a construction case. The holding is that this 1995 deed granted rather than reserved. A differently worded instrument produces a different result, and the analysis begins again with the text.
The statutory question is open. Section 55.1-119's effect on the stranger rule has not been decided.
What to watch next
The first-impression question the court flagged is the one to follow. A Virginia case that briefs § 55.1-119 squarely would settle whether the stranger rule still has independent force at all — and would matter to every association whose common area is crossed by a developer-era easement.
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