Recent Virginia Court of Appeals Opinion Holds Statutes of Limitations Do Not Apply Where Only Equitable Relief is Sought

    By Catrina C. Waltz, James L. Windsor, Real Estate Claims & Title Insurance Solutions

    Last week, the Court of Appeals of Virginia issued an important opinion involving trespass and statutes of limitations. In Willems v. Batcheller, Record No. 0754-22-4, 2023 Va. App. LEXIS 524 (Ct. App. Va. Aug. 8, 2023), the Court held that time alone will not bar a party from seeking equitable relief for trespass.

    In 2002, the Batchellers purchased their home in Fairfax County, which is adjacent to the Willemses’ property. The following year, the Batchellers constructed a fence between their yard and the now-Willemses’ property. The Willemses purchased their home in 2015.

    In 2020, the Willemses filed suit against the Batchellers, alleging the Batchellers (1) maintain a fence that encroaches upon the Willemses’ property and (2) have planted bamboo in the rear of their property that has travelled from their property and invaded the Willemses’ property. The Willemses sought (1) to enjoin the Batchellers from trespassing based on the fence, (2) to compel the Batchellers to remove the fence from the Willemses’ property, and (3) to compel the Batchellers to cease and prevent all encroachment and invasion from the bamboo based on trespass and nuisance.

    In their Answer, the Batchellers alleged adverse possession, statute of limitations, and laches as affirmative defenses. The circuit court held (1) the spread of the bamboo is trespassory and a nuisance,  (2) because the relief sought by the Willemses is solely equitable, Virginia Code § 8.01-230 permits the suit despite the statute of limitations on trespass and nuisance, (3) laches does not apply to bar the Willemses’ claim, (4) the fence was trespassory, (5) the Batchellers proved adverse possession as an affirmative defense, and (6) the court could declare a new boundary line: the fence line. The court also ordered the Batchellers to take permanent measures to control the bamboo.

    Most notably, upon appeal, the Court of Appeals held that the circuit court did not err in holding that the statute of limitations did not bar the Willemses’ claims. The Willemses pled that no sufficient remedy existed at law and thus sought equitable remedies to their trespass and nuisance claims. While Virginia Code § 8.01-243(B) provides actions for injury to property shall be brought within five years after the cause of action accrues, Virginia Code § 8.01-230 provides “[i]n every action for which a limitation period is prescribed, the right of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person or damage to property … except where the relief sought is solely equitable.” The Court thus held that by the plain language of § 8.01-230, the right of action was not deemed to have accrued at the time the injury began, meaning the five-year statute of limitations does not apply to Batchellers’ claims for equitable relief. The Court rejected Batchellers’ contentions that this interpretation violates the precedent that “equity follows the law” and leads to “absurd results.” Rather, the Court found that the General Assembly “made the policy decision that simply time alone will not bar a party from bringing a request seeking equitable relief.” It also noted that this does limit the doctrine of laches, which still ensures a defendant will not be disadvantaged where prejudice accrues to a defendant because of a plaintiff’s failure to assert their rights. Although the possibility that the statute of limitations does not apply to claims seeking purely equitable relief was hinted at in the Supreme Court of Virginia’s decisions in Forest Lakes Cmty. Ass’n v. United Land Corp. of Am., 293 Va. 113, 795 S.E.2d 875 (2017) and Day v. MCC Acquisition, LC, 299 Va. 199, 203, 848 S.E.2d 800, 801 (2020), this appears to be the first case expressly reaching this conclusion.

    The Court of Appeals’ opinion contains several other substantial holdings. While you are encouraged to read the entire case, additional holdings include:

    • The circuit court lacked jurisdiction necessary to declare a new boundary line because the Batchellers did not sufficiently plead adverse possession. The Batchellers did not ask the court to declare a new boundary line or grant them title to the dispute area; rather, they only pled adverse possession as an affirmative defense.
    • There was a sufficient factual basis in evidence for the circuit court to conclude the bamboo proliferated from the Batchellers’ yard to the Willemses’ and the Willemses’ property was damaged as a result.
    • The circuit court did not err in concluding that the Batchellers’ bamboo constituted trespass and nuisance.
    • The Batchellers’ mere assertion that they suffered “obvious” prejudice is insufficient to support a finding of laches.

    Jim Windsor and Catrina Waltz would like to express their appreciation to counsel for the Willemses, John C. Altmiller with Pesner Altmiller Melnick DeMers & Steele PLC in Tysons, VA, for collaborating in this Alert.  If you have any questions regarding this opinion, or title and real property questions in general, please contact Jim Windsor at (757) 873.6308 or, or Catrina Waltz at (804) 771.5744 or

    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 2024.