Who Owns that Unused Street? A Roadmap to Virginia’s Layered Legal Approach

Most people do not think twice about the quiet, unused, streets that hide within our neighborhoods, cities, and towns. These streets are easy to overlook, until a disrupting event—such as new property development, utility work, or a dispute between landowners—raises the question: who actually owns these forgotten streets? The ownership of unused streets can be a complex issue, that can generate legal disputes over who has the right to access, use, or claim title to these streets. Unused streets can fall into four distinct categories, each with its own set of legal implications: (1) public ownership, (2) private ownership, (3) abandoned streets, or (4) paper streets. Understanding the differences between these types of streets is essential for property owners, developers, and legal professionals alike. Whether you’re trying to resolve a neighborly dispute, navigate a new construction project, or simply clarify who has access to a street, knowing the type of ownership involved is key to avoiding costly legal battles and ensuring fair use of the property.

Public Ownership

In Virginia, many unused streets remain under the ownership of the local governing authority, typically the municipality or county in which they are located. Public ownership is not dissolved when a street is unused, so even if a street seems empty or forgotten, it can still remain open for public use. The primary way streets become publicly owned is through a process called dedication. Broadly, dedication is a grant of private land by its owner for the purpose of public use. The process of dedication requires both an offer of land for public use by a landowner, and an acceptance of the dedication by the local governing authority. Once dedication is complete, it is irrevocable and the public’s right to use the street cannot be limited by any individual or entity, including the original owner. In Virginia, there are two types of dedication: statutory dedication, which follows specific rules outlined in the Virginia Code, and common law dedication, which is based on court decisions over time that define what actions by landowners and local governments qualify as dedication.

Statutory Dedication

A statutory dedication of a street in Virginia involves a formal process between a landowner and the locality consistent with procedures set out in the Virginia Code Section 15.2-2265. The statute states that when a landowner or a developer creates a plat that designates streets, alleys, or other spaces for public use and records it with the local government, this acts as an offer to dedicate the designated land for public use. However, for a street to officially become publicly owned, the local government must accept the offer of dedication. Acceptance can happen in two ways: either explicitly, when the local government formally approves and records the plat, or implicitly, when the government starts maintaining or improving the street. Once accepted, ownership of the street transfers to the local government in fee simple, according to the statute, and the public gains the right to use it.

Common Law Dedication

Unlike statutory dedication, a dedication under the common law does not require a specific action from the landowner, such as designating a street on a plat, to constitute an offer of dedication. A common law offer of dedication is complete when a landowner expresses a clear and unmistakable intention to dedicate a street for public use. This intent can be demonstrated in several ways, such as allowing unrestricted and continuous public use of the street, transferring the street to the locality by deed for public use, or knowingly permitting the locality to make improvements or perform maintenance. After a landowner’s intention to dedicate is established, the locality must accept the offer for dedication to be complete. Common law acceptance of a dedication can be express or implied. A locality can explicitly accept a dedication by passing a resolution or ordinance that designates the street for public use. Alternatively, acceptance can be implied if the locality starts repairing, maintaining, or improving the street. Actions like paving the street or installing street signs or stoplights can serve as evidence that the dedication has been accepted.

While the concept of dedication might seem like a complicated legal formality, at its core, it’s simply the transfer of ownership for public use. Whether a street is dedicated by statute or under the common law, the key elements are the same: a landowner’s intent to dedicate for public use and a locality’s acceptance. The next time you're unsure if a street is publicly owned, take a look at whether it's maintained, developed, or has public utilities. Even if there's no obvious public use, signs like paving, regular repairs, street signs, traffic signals, or utility lines often indicate that the local government has taken responsibility for the street, suggesting public ownership.

Private Ownership

A privately owned street does not require dedication and is used only by the owner and those with express or implied permission. The general public is not allowed to access private streets, and unauthorized use constitutes trespassing. Private streets may be marked with signs such as "Private Property" or "No Trespassing," or they may have security gates or barriers preventing entry.

Abandonment by the Locality

Many people wrongly assume that unused streets have been abandoned and that nobody owns them. This assumption is wrong for two reasons: in Virginia, the mere nonuse of a street is not equivalent to abandonment, and a street will always have an owner, regardless of whether it is abandoned or not. Although the public right of passage is extinguished when a locality abandons a street, the ownership typically vests in the “abutting” landowners, that directly border the street. So how does a locality abandon a street? Much like the dedication process, a locality can abandon a street either through statutory procedures or by actions that are recognized as abandonment under common law. The Virginia Code provides several statutory mechanisms through which a locality can formally abandon a street that is no longer necessary for public use. A locality can voluntarily abandon a street consistent with the statutes, or a landowner can petition a locality to abandon a street. Abandonment by statute requires a locality to provide public notice, hold a public hearing, and issue a formal resolution of abandonment. However, a locality can abandon a road without notifying affected landowners if it replaces the abandoned road with a new one that serves the same community.

Alternatively, common law abandonment requires clear and unmistakable evidence of abandonment, which cannot be established through mere nonuse of a street. To establish the abandonment, the nonuse of a street must be coupled with other acts that clearly indicate an intent to abandon. For example, an unused street with obstructions and overgrowth is likely to be deemed abandoned when the obstructions indicate a clear intent to abandon the road.

Paper Street

Finally, an unused street may qualify as a paper street, the most elusive of the categories. A paper street is a street that exists on maps, surveys, and plats but that has not been properly dedicated or opened. Sometimes these streets truly exist only on paper and may not physically appear on the ground. However, a paper street can be a physical road that was offered for dedication or reserved for a locality but was never maintained or repaired. These streets may lack basic signs of development such as paving and curbs. In Virginia, paper streets typically emerge in older subdivisions and in rural areas, where development and infrastructure plans were drawn up but never completed. Like abandoned streets, the ownership of a paper street remains with the abutting landowners as long as dedication remains incomplete. Paper streets raise practical and legal questions about ownership, use, and rights, and may be handled differently based on the locality.

So… who owns that unused street?

As you can see, determining the ownership of an unused street just by observing it can be challenging. Streets with stop signs, power lines, public utilities, or signs of recent maintenance are likely dedicated for public use and maintained by the locality. On the other hand, streets lacking these indicators could be owned by abutting landowners, a private entity, or by the locality. If you're unsure about the ownership of an unused street, the local street records—such as lists of public streets, subdivision plats, tax parcel maps, and land records or deeds—are useful resources for finding answers.

While this article provides a helpful overview of street ownership, there are legal nuances and local rules that may complicate the analysis. When the ownership of an unused street is critical to your legal matter, consulting an experienced real estate or right of way attorney can help you navigate the relevant local regulations, statutes, and case law to clarify the street’s status and how it impacts your objectives.

Julianne Kouba is a Pender & Coward attorney focusing her practice on civil litigation and local government matters.