The Deed Says “Vacated,” But Is It? Street Vacations in Virginia

Presented by: Hayden-Anne Breedlove, Counsel

When a public street, alley, or right-of-way appears in a legal description, or appears to have been “added” to a parcel years ago, it is important to pause and confirm how, and whether, it was properly vacated. In Virginia, the governing authority for most street vacations is Va. Code § 15.2-2006, and understanding its procedural requirements is important.

A vacation is the formal discontinuance of a public right-of-way by the locality. It does not occur automatically simply because a road is no longer maintained or appears unused. Under § 15.2-2006, a locality may alter or vacate a public right-of-way either on its own motion or on application of any person, but only after following statutory notice and hearing procedures. For title purposes, the essential requirement is the adoption of an ordinance of vacation by the governing body.

Before a right-of-way can be vacated, notice of the intent to do so must be published twice in a newspaper of general circulation in the locality. The first publication must appear no more than 28 days before the hearing, and the second must appear no less than seven days before the hearing. The notice must specify the time and place of the hearing, and persons affected must be given the opportunity to appear and be heard. From an underwriting standpoint, if a party claims that a street was vacated informally or “years ago,” but no adopted ordinance and no recording can be located, the safer assumption is that the public right-of-way still exists.

The statute further requires that a certified copy of the ordinance of vacation be recorded as deeds are recorded and indexed in the name of the locality. This requirement directly impacts title. Agents should confirm that a certified copy of the ordinance exists, that it has been recorded in the land records, that it is properly indexed under the locality’s name, and that the recording has in fact occurred. If the ordinance has not been recorded, the vacation has not been perfected in the land records, and underwriting review is appropriate.

Any appeal from the adoption of an ordinance must be filed within sixty days in the circuit court for the locality in which the right-of-way is located. In most transactions, this will not be an issue because the vacation occurred years earlier. However, in development transactions involving recently adopted ordinances, agents should confirm that the sixty-day appeal period has expired and that no litigation was filed during that window.

While § 15.2-2006 governs the procedure for vacation, it does not address in detail how title to the underlying land is distributed following vacation. Generally, upon proper vacation, title to the underlying fee reverts to the abutting landowners, often to the centerline, unless the original dedication or conveyance provided otherwise. This analysis is fact-specific and requires review of the original subdivision plat, the dedication language, the ordinance of vacation, and subsequent conveyances. It should not be assumed that the entire width of the former right-of-way automatically becomes part of one parcel.

Common issues arise when a deed references “that portion of vacated Maple Street” without further documentation. In those cases, agents should locate the recorded ordinance, confirm its recording and indexing, determine whether it was conditional, and ensure that the legal description aligns with the reversion principles applicable to the original dedication. Similarly, if a seller represents that a road “became private years ago,” that statement alone is insufficient. A road may cease maintenance without being legally vacated. Absent a properly recorded ordinance, it should be treated as an existing public right-of-way.

If an ordinance exists but was never recorded, the statutory requirement has not been satisfied in the land records, and underwriting guidance should be sought. Likewise, if a vacated street is not specifically referenced in later deeds, the strip may still have passed by operation of law depending on the language of the description. This is a legal analysis issue rather than a survey issue.

In practice, when encountering a vacated right-of-way, agents should confirm the existence of an ordinance adopted pursuant to § 15.2-2006, verify that it has been recorded and indexed in the name of the locality, confirm that the sixty-day appeal period has expired, review the ordinance for conditional language, and analyze the reversion of the underlying fee. When documentation is incomplete or the facts do not neatly align with the statute, the safest course is to contact us at vaunderwriting@oldrepublictitle.com