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

Recently, in the case of Ettinger v. Oyster Bay II Community Property Owners’ Association, copy attached, the Supreme Court of Virginia considered the issue of whether a property line runs to the center of a road when the deed describes the property as being bounded by that road and further includes the property’s square footage as well as a reference to the subdivision plat. The Court held that the property line is presumed to run to the center of the road, unless a contrary intent is shown. In this case, neither the square footage or the subdivision plat showed such contrary intent. As a result, the property line ran to the center of the road by which it was bounded.

This case arose from a boundary dispute between Philip P. Ettinger and Oyster Bay II Community Property Owners’ Association (the “Association”) regarding Parcel E, a tract owned by Ettinger. Specifically, at issue was whether Ettinger owns the portion of Hibiscus Drive, a road forming the northeast boundary of Parcel E, between the road’s edge and its center.
 
In 1972, the developer of the subdivision recorded subdivision plats creating the lots and parcels of the Oyster Bay II community, including Parcel E.  In 1975, the developer conveyed fee simple title to Parcel E to a Mr. Woodrow D. Marriott. In 1976, the Association was created as a result of a settlement of litigation. As part of that settlement, the developer conveyed, by quitclaim deed, to the Association “all of its right, title and interest in and to all streets, alleys and any and all other real estate situate in Oyster Bay II.” 

The deed into Ettinger of Parcel E contained the following property description:

All that certain tract or parcel of land designated as Parcel “E” containing One Hundred Ninety-six Thousand Six Hundred Seventy square feet (196,670 sq. ft) as shown on a certain plat prepared by Richard H. Bartlett and Associates entitled “Oyster Bay Community, Section II, Subdivision ‘D’” which plat has been duly recorded in the Clerk’s Office for the Circuit Court of Accomack County, Virginia, in Deed Book 318 at page 494, along with a deed . . . to Joseph A. Giardina et als[.] duly recorded in said Clerk’s Office in Deed Book 318 at page 483 et seq to which reference is made for a more accurate description of the herein conveyed tract or parcel of land. Said tract is bounded on the Northeast, by Hibiscus Drive; on the Southeast, by Lots 227 and 228 as shown on said plat entitled “Oyster Bay Community Section II, Subdivision ‘B’” which is duly recorded in Deed Book 318, at page 490; on the Southwest, by lands now or formerly owned by Donald Amrien and Watson; and on the Northwest, by North Main Street.

(Emphasis supplied by the Court). A dispute arose as Ettinger prepared to develop Parcel E, and the Association erected a construction fence and “no trespassing” sign along Hibiscus Drive blocking access to Parcel E. 

Reviewing a grant of summary judgment on a stipulated record, the Supreme Court of Virginia reaffirmed that “[i]t is an established rule in Virginia that a conveyance of land bounded by or along a way carries title to the center of the way, unless a contrary intent is shown.” Op. at 3 (quoting Martin v. Garner, 286 Va. 76, 80–81 (2013)). The Court noted that the  “presumption is based on grounds of public convenience, and to prevent disputes as to the precise boundaries of property.” Op. at 4 (quoting Durbin v. Roanoke Bldg. Co., 107 Va. 753, 755 (1908)). 

The Court held that the deed’s description fell within the rule and rejected the Association’s reliance upon the subdivision plat and upon the square footage. First, the Court held that the subdivision plat did not support the Association’s position, because “[w]hen a deed describes a lot by reference to a survey plat depicting a street as a boundary, the rule applies and the deed conveys title to the center of that street.” Op. at 6-7. “A mere reference to the plat does not constitute evidence of contrary intent.” Id. 

Second, the Court reiterated “that quantity designations are ‘regarded as the least certain mode of describing land, and hence must yield to description by boundaries and distances.’” Op. at 6 (quoting Spainhour v. B. Aubrey Huffman & Assocs., Ltd., 237 Va. 340, 347 (1989)). As a result, the Court held that the square footage must yield to the more specific designation of Hibiscus Road. 

Because the Court found that nothing in the deed expressed a contrary intent, the rule of construction applied, and the Court held that Parcel E extends to the center of Hibiscus Drive.  As a result, the Court entered final judgment for Ettinger. 

If you have any questions regarding this decision or regarding title issues in general, please contact Clark Belote at (757) 624.3109 or cjbelote@kaufcan.com or Jim Windsor at (757) 873.6308 or jlwindsor@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 2024.