Shared Easement Maintenance – What To Know

Easement Maintenance

While most urban and suburban properties have direct access to a public right of way, some properties, particularly those in more rural areas, get their access to the public streets by way of an easement across a property that someone else owns.  Unlike public streets, easements are privately maintained.  Sometimes, an issue arises as to who is responsible for that maintenance.

Under common law, the owner of a property that gets its access by way of the easement has a duty to maintain the easement, but need only maintain the easement to the degree that the owner deems necessary for access to their own property.  This works very well when there is a single property using the easement.  The difficulty comes when more than one property uses the easement.

When more than one property uses the easement, the property owners should apportion the cost of repairs and maintenance relative to their use of the easement.  Unfortunately, the Virginia courts have not squarely addressed the issue of how the costs of maintenance should be apportioned if the parties cannot come to an agreement as to who should pay for what.  For example, it is not clear whether the owner of the servient estate (the property that the easement crosses) in a shared easement may make improvements to the easement and demand repayment from the owner of the dominant estate (the property that accesses by way of the easement).

The general rule is not the same when the dominant estate owner is the sole user of the easement as when the easement is used in common with other dominant estates or with the servient estate.  In this situation, courts have held that the users of a common easement should apportion the cost of repairs and maintenance among themselves relative to their use of the road, but have not given much guidance beyond that.  Often there is an issue as to what constitutes maintenance or repair, as opposed to improvements. In addition, some owners may use the easement in a manner that causes more damage than other users.

Of course, the best solution to the problem is to have a well-written agreement among the parties that clearly delineates maintenance responsibilities, sets out a clear procedure as to when and how the easement will be maintained, and a procedure to resolve disputes.  There is no adequate “cookie-cutter” or form document that can accomplish this because every situation is different.  In addition, any maintenance agreement should have the appropriate language to be binding on successors in title and should be recorded among the county land records so that it is binding on future purchasers of the properties.

For more information about shared easement maintenance or related matters, please contact John Rinaldi.


Image Source: Public Domain

Litigation Spotlight: Garth M. Wainman

Each month we spotlight our talented colleagues and learn a little more about their professional journey and how they make our firm special. This month we are spotlighting Garth Wainman as well as celebrating his most recent and well-deserved award, being voted Lawyer of the Year in the Washington, DC metropolitan region for Real Estate Litigation. Each year practicing lawyers in the U.S. are selected by their peers for inclusion in the edition of The Best Lawyers in America®. The Best Lawyers in America® “Lawyer of the Year” designation is awarded to only one lawyer in the DC Metro area with the highest average of votes in their particular practice and region. Without a doubt, this is indicative of Garth’s stellar reputation and impeccable work ethic in the legal field.

Garth’s roots as a lawyer have always been in real estate and commercial litigation since joining the Hazel, Beckhorn, and Hanes firm in the 1980s. That firm merged and became Hazel and Thomas and became a leader in Northern Virginia’s commercial litigation in both Virginia and federal courts.

Garth joined Walsh Colucci and Lubeley with long-time friend and partner John Foote in 1999 and brought their respective litigation and land use experience to the firm. Upon joining the firm, Garth chaired the Litigation group and helped build it into a strong and collaborative team of litigators that support the firm’s long list of established developers, builders, and contractors. While being recognized by Best Lawyers for many years as a top lawyer in both real estate matters and commercial litigation—in 2023 Garth was recognized as the top lawyer in the Washington Metro area in Commercial Real Estate Litigation. He believes this honor is a testament to being surrounded by talented and hard-working lawyers that pride themselves on staying current on all things real estate and business law and once a case heads to trial– simply out-strategizing and outworking our opponents.

If asked what makes a great litigator, Garth would say it starts with asking your client the hard questions up front and then giving them the unvarnished truth about the strength of their claims and defenses. Lawyers get their clients in trouble when they do not give them an honest up-front assessment of the weaknesses in the client’s case and the costs associated with settlement versus trial. Our litigation group firm has a very successful track record of defending our builder/developer clients against overly inflated multi-million dollar damage claims. In recent multi-million dollar suits in both state and federal courts, our litigation team has gotten either complete defense verdicts or minimal damage awards that were below what our client’s offered in settlement prior to litigation.

Garth constantly reminds his litigation group that being in a courtroom is the “last” place our business clients want to be so he stresses exhausting all creative settlement efforts to find common ground but if the other side leaves you no choice—make them regret it.


Virginia Business Magazine Honors Four Walsh Colucci Attorneys

David J. Bomgardner, John H. Foote, Michael R. Kieffer, and Garth M. Wainman, are listed among the 2022 Virginia Business Legal Elite, published in the December issue of Virginia Business magazine. The Virginia Business Legal Elite list is compiled from nominations and votes submitted by the members of the Virginia Bar Association and Virginia State Bar. It has been published annually since 2000.

Congratulations to our attorneys recognized by Virginia Business magazine!

Arlington County Ends Local State of Emergency: Changes Coming to Virtual Meeting Process and Temporary Outdoor Seating

Changes are coming to Arlington County’s public meeting processes and Temporary Outdoor Seating Permits in the coming months:

Return of In-Person/Hybrid Meetings

The Arlington County Local Emergency Declaration (the “Emergency Declaration”), which was adopted by the County Board at the onset of the Covid-19 pandemic in March 2020, formally ended on August 15, 2022. The Declaration allowed the County to shift to virtual operations, including holding remote County Board commissions and advisory group meetings, such as those of the Site Plan Review Committee, the Planning Commission, and the Board of Zoning Appeals. A new statewide Virginia Electronic Meeting Policy took effect on September 1, 2022, which limits those instances in which virtual meetings may occur. The policy also prescribes procedures that must be followed when a public body holds an all-virtual public meeting and requires that a written policy governing such meetings be adopted by each locality.

Under the policy, public bodies may hold virtual meetings twice annually, or 25 percent of all meetings, whichever is greater. The policy further allows for remote participation by the public and individual commission/advisory group members by exception.

As a result, Arlington County’s myriad public bodies (as well as those of other jurisdictions across the Commonwealth) will likely be switching to a hybrid or in-person meeting format in the coming months.

Details for such protocol changes continue to evolve. In some instances, public bodies may limit in-person participation to the minimum necessary to achieve a quorum. In other instances, representatives of land use applicants may be invited in-person, with other design team professionals participating remotely. It is yet to be determined how the public will participate.

Recent SPRC meetings have been held in a hybrid format, with some SPRC members and applicant representatives attending in-person, while others attend virtually. Applicants are encouraged to work with their respective project planner on meeting format and attendance to ensure a smooth meeting process.

The scope of these changes will most assuredly vary depending upon the type of board, authority, or commission. As Arlington County transitions to new in-person and hybrid meeting formats, future attendees should assume flexibility and be prepared to adapt to the new expectations.

Temporary Outdoor Seating Area Permits

The Emergency Declaration created an expedited process for temporary outdoor seating areas (“TOSAs”), which allowed existing restaurants, bars, and cafes with valid Certificates of Occupancy to provide non-rooftop outdoor seating through an expedited application process. TOSAs proved extremely popular and afforded restaurants the ability to offer a safer dining experience to make up for reduced indoor seating capacity.

The County also continues to accept and process TOSA applications, and TOSA permits will remain valid until six months after the August 22nd end of the Local Emergency Declaration, or until February 15, 2023. Staff anticipates notifying all valid TOSA permit holders of any updates or changes to the TOSA policy prior to their expiration date.

As a result, the County has signaled a return to its pre-pandemic process for restaurants to apply for permanent outdoor seating. Depending upon the location of the outdoor seating area, this process may include, but not be limited to, use permit approvals for seating areas within public access easements or public property, minor site plan amendments, encroachments, administrative change requests, and applications for temporary structures/tents.

The County recently commenced a “Future of Outdoor Dining” (FOOD) study to evaluate the future of outdoor dining and the lessons learned from TOSAs under the framework of the Zoning Ordinance. More information may be found here.

The County Manager will provide an update to the County Board regarding the FOOD study in November, and the County has created a survey for feedback, which may be found here.

Employee Spotlight: Joanna Thomas

Joanna Thomas joined the firm in 2021 as a Litigation Associate for the Prince William office. Prior to joining the firm, Joanna worked as a Student Attorney for the Community Legal Practice Center in Lexington, Virginia. As a Student Attorney, she litigated civil disputes representing low-income individuals in the local community. She also worked as a Summer Associate for a litigation law firm in Fairfax County, and has interned for the Virginia Office of the Attorney General and the Honorable George D. Varoutsos, Chief Judge of the Arlington County Juvenile and Domestic Relations Court. Joanna is a graduate of Washington and Lee University School of Law. She obtained a Bachelor’s degree in Public Policy and Government from the University of Virginia.

This month the spotlight is on the Litigation team’s newest member, Joanna Thomas.

Tell us a little about yourself — where did you grow up?

I grew up in Falls Church and McLean, Virginia.

What did you want to be when you were younger?

When I was younger, I wanted to be an astronaut. I loved learning about the solar system. I even remember interviewing a NASA scientist for a third grade class project. Later on, my career path interest began to shift towards the legal field.

What aspect of your role do you enjoy the most?

I enjoy learning each client’s unique story and, as a litigator, working to advocate for our client’s interests whether through negotiation with other counsel or through written and oral argument in court.

Words of advice for aspiring lawyers?

In general, for anyone pursuing a legal career, I would say work hard and be perseverant. Resilience is key.

Aside from a very busy schedule, what do you like to do for fun outside of work?

I love traveling, cooking, cheering on the Hoos (wahoowa!), spending time with family and friends, and volunteering through my church’s community service initiatives.

What is one thing about you few people know?

I think crushed red pepper makes almost all food taste better. I put it on everything.

Favorite place(s) to travel to?

London. “When a man is tired of London, he is tired of life; for there is in London all that life can afford.”- Samuel Johnson

Favorite book?

Pride and Prejudice.

What do you think makes Walsh, Colucci, Lubeley & Walsh is a great place to work?

As an attorney in the early phase of my career, I am so appreciative of how willing people are to answer questions. Everyone’s door is always open.

Thank you, Joanna!

Built Podcast: Antonia Miller Digs into the Past to Get the Deal Done

Real estate transactions attorney and shareholder Antonia Miller was recently interviewed and featured on Fidelity National Financial‘s Built Podcast. Every case presents unique complexities and Antonia’s hands on, problem-solving approach both on paper and in-person have helped move the needle on her clients’ development projects. When Antonia is not on-site or digging through land records, she is stepping outside her bubble, exploring the community where she lives and works.

Listen to the podcast recording here. Also available on Spotify and Apple Podcasts.

In Memoriam: Martin D. “Art” Walsh

On June 6, Walsh, Colucci, Lubeley & Walsh, P.C. lost a beloved member of its family, Martin D. “Art” Walsh.

A founder and leader of the firm, Art was viewed as the go-to zoning attorney in Arlington County and Fairfax County. He helped build Walsh Colucci into a regional land use law powerhouse and his work reshaped much of Northern Virginia’s skyline. Over the years, Art represented large and small clients involved with some of the most important commercial real estate development projects in the region.

Art grew up in Arlington County’s Lyon Village neighborhood, and attended Bishop O’Connell High School where he played basketball and baseball. He went on to earn his bachelor’s degree from the College of William & Mary, and subsequently served as an officer in the United States Army between 1967 and 1969, and the Army Reserves between 1969 and 1976. In 1969, he received the Army Commendation Medal, which is awarded for sustained acts of heroism or meritorious service.

In 1973, Art earned his law degree from the College of William & Mary’s Marshall-Wythe School of Law where he served as the President of the Student Bar Association. He was committed to giving back to his beloved alma mater, and conducted various presentations on zoning, land use, and commercial real estate at the law school. The law school awarded Art the honorary Order of Coif Faculty Award and, in 2015, he was awarded the coveted Alumni Medallion Award, which is the highest and most prestigious award given by the William & Mary Alumni Association. During the Alumni Medallion Award ceremony, Art noted, “My parents inspired me and my brothers and sisters to have faith, work hard and be humble. It is that legacy that we all try to honor on a daily basis.”

Of his many accomplishments, Art was most proud of the firm’s success, which he began with four friends. While many thought it was too risky at the time, Art relied on a combination of hard work, good fortune, and wonderful clients to ensure the firm’s success. Art was consistently recognized as a top land use attorney in publications such as Super Lawyers, Best Lawyers, Chambers, Martindale-Hubbell, Washingtonian magazine, Forbes magazine, Legal Times magazine, Law and Politics magazine, and Arlington Magazine. His commitment to integrity, generosity, and congeniality shaped the personality of the firm and its professionals.

Outside of his law practice, Art contributed to numerous philanthropic causes. For the past 23 years, he hosted an annual golf outing to raise money for the Juvenile Diabetes Research Foundation (JDRF), the world’s leading global organization funding type 1 diabetes (T1D) research. The fundraiser pays tribute to Art’s brother John, who was diagnosed with T1D at age 11 and passed away in 2000 due to complications from the disease. Art described the golf outing as a great way to honor his brother, reconnect with colleagues and clients, and contribute to JDRF. In 2016, Art received the Rapaport Lifetime Service Award, which recognized his tireless efforts in raising more than $1.5 million over the years for JDRF.

Art was a loving husband to his wife, Nan Walsh, and a loving father to his children, Ada-Marie Aman and Sarah-Nell Walsh. He will be remembered for his tremendous sense of humor and congenial personality, his generous nature, and for caring deeply for his friends and colleagues, many of whom are proud to call him a mentor.

Art will be deeply missed as both a friend, leader, and colleague. His passing is an immense loss to all who knew him, and the firm asks that you keep your thoughts and prayers with Art’s family during this difficult time.

In lieu of flowers, memorial contributions may be made at Art’s memorial page or by mail to:
JDRF Mid-Atlantic Chapter
1400 K Street NW, Suite 1200
Washington, DC 20005
Cards and notes of condolence may be sent to the Walsh family:
c/o Walsh, Colucci, Lubeley & Walsh
2200 Clarendon Blvd, Suite 1300
 Arlington, VA 22201

2022 Virginia Super Lawyers and Rising Stars

We are pleased to announce that three lawyers have been selected as Virginia Super Lawyers.

Michael J. Coughlin | Eminent Domain
John H. Foote | Land Use/Zoning, Litigation
Andrew A. Painter | Land Use & Zoning

Two attorneys were named Virginia Rising Stars for 2022. Thomson Reuters recognizes top up-and-coming lawyers who are 40 years old or younger, or who have been practicing 10 or fewer years. Congratulations!

Robert D. Brant | Land Use & Zoning
Nicholas V. Cumings | Land Use & Zoning

A Thomson Reuters publication, Super Lawyers identifies candidates through independent research and by inviting lawyers in each state to nominate the best attorneys they have observed in action. A lawyer-led research staff evaluates candidates on 12 indicators of peer recognition and professional achievement. Candidates also undergo a peer review by practice area.

Virginia Super Lawyers

Image Source

Walsh Colucci Volunteers Join National Rebuilding Day in Alexandria

National Rebuilding Day takes place every year on the last Saturday in April. On April 30, 2022, a team of Walsh Colucci of volunteers came together to help make vital repairs on an Alexandria home on behalf of Rebuilding Together DC • Alexandria.

A huge thank you goes out to our team captain Tim Clewell and volunteers Susie Truskey, Joanna Thomas, Bernie Suchicital, Reed Stadler, Matthew Leslie, Blake Browning, Stephanie Keener, and Todd Davis.