Virginia

Recreational Use/Recreational Trespass Laws

Va.Code Ann. 29.1-509

§ 29.1-509. Duty of care and liability for damages of landowners to hunters, fishermen, sightseers, etc.

(a) For the purpose of this section:

"Fee" means any payment or payments of money to a landowner for use of the premises or in order to engage in any activity described in subsections B and C of this section, but does not include rentals or similar fees received by a landowner from governmental sources or payments received by a landowner from incidental sales of forest products to an individual for his personal use, or any action taken by another to improve the land or access to the land for the purposes set forth in subsections B and C of this section or remedying damage caused by such uses.

"Land" or "premises" means real property, whether rural or urban, waters, boats, private ways, natural growth, trees and any building or structure which might be located on such real property, waters, boats, private ways and natural growth.

"Landowner" means the legal title holder, lessee, occupant or any other person in control of land or premises.

"Low-head dam" means a dam that is built across a river or stream for the purpose of impounding water where the impoundment, at normal flow levels, is completely within the banks, and all flow passes directly over the entire dam structure within the banks, excluding abutments, to a natural channel downstream.

(B) A landowner shall owe no duty of care to keep land or premises safe for entry or use by others for hunting, fishing, trapping, camping, participation in water sports, boating, hiking, rock climbing, sightseeing, hang gliding, skydiving, horseback riding, foxhunting, racing, bicycle riding or collecting, gathering, cutting or removing firewood, for any other recreational use, or for use of an easement granted to the Commonwealth or any agency thereof to permit public passage across such land for access to a public park, historic site, or other public recreational area. No landowner shall be required to give any warning of hazardous conditions or uses of, structures on, or activities on such land or premises to any person entering on the land or premises for such purposes, except as provided in subsection D.

(c) Any landowner who gives permission, express or implied, to another person to hunt, fish, launch and retrieve boats, swim, ride, foxhunt, trap, camp, hike, rock climb, hang glide, skydive, sightsee, engage in races, to collect, gather, cut or remove forest products upon land or premises for the personal use of such person, or for the use of an easement as set forth in subsection B does not thereby:
1. Impliedly or expressly represent that the premises are safe for such purposes; or
2. Constitute the person to whom such permission has been granted an invitee to whom a duty of care is owed; or
3. Assume responsibility for or incur liability for any intentional or negligent acts of such person or any other person, except as provided in subsection D.

(d) Nothing contained in this section, except as provided in subsection E, shall limit the liability of a landowner which may otherwise arise or exist by reason of his gross negligence or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. The provisions of this section shall not limit the liability of a landowner which may otherwise arise or exist when the landowner receives a fee for use of the premises or to engage in any activity described in subsections B and C of this section. Nothing contained in this section shall relieve any sponsor or operator of any sporting event or competition including but not limited to a race or triathlon of the duty to exercise ordinary care in such events. Nothing contained in this section shall limit the liability of an owner of a low-head dam who fails to implement safety measures described in subsection F.

(e) For purposes of this section, whenever any person enters into an agreement with, or grants an easement to, the Commonwealth or any agency thereof, any county, city, or town, or with any local or regional authority created by law for public park, historic site or recreational purposes, concerning the use of, or access over, his land by the public for any of the purposes enumerated in subsections B and C of this section, the government, agency, county, city, town, or authority with which the agreement is made shall hold a person harmless from all liability and be responsible for providing, or for paying the cost of, all reasonable legal services required by any person entitled to the benefit of this section as the result of a claim or suit attempting to impose liability. Any action against the Commonwealth, or any agency, thereof, for negligence arising out of a use of land covered by this section shall be subject to the provisions of the Virginia Tort Claims Act (§ 8.01-195.1 et seq.). Any provisions in a lease or other agreement which purports to waive the benefits of this section shall be invalid, and any action against any county, city, town, or local or regional authority shall be subject to the provisions of § 15.2-1809, where applicable.

(f) Any owner of a low-head dam may mark the areas above and below the dam and on the banks immediately adjacent to the dam with signs and buoys of a design and content, in accordance with the regulations of the Board, to warn the swimming, fishing, and boating public of the hazards posed by the dam. Any owner of a low-head dam who marks a low-head dam in accordance with this subsection shall be deemed to have met the duty of care for warning the public of the hazards posed by the dam. Any owner of a low-head dam who fails to mark a low-head dam in accordance with this subsection shall be presumed not to have met the duty of care for warning the public of the hazards posed by the dam.

Financial Incentives for Public Access

Property Tax Incentives:
Current Use Programs: 

Statute: Sec. 58.1-3230, Code.

Method of Assessment: Current use based on productivity for agriculture, horticulture and forestry.

Application: Required, burden on landowner.

Plan Requirements: Forest land classified as "Non-productive" must have a management plan.

Penalty: The roll-back tax shall be equal to the sum of the deferred tax for each of the five most recent complete tax years including simple interest on such roll-back taxes at a rate set by the governing body, no greater than the rate applicable to delinquent taxes in such locality. The deferred tax for each year shall be equal to the difference between the tax levied and the tax that would have been levied based on the fair market value assessment of the real estate for that year.

Current Use Taxation for open-space land: 

Statute: Va. Code Ann. §58.1-3230.

Purpose of Assessment: “Encourage the proper use of real estate in order to assure a readily available source of agricultural, horticultural and forest products, and of open space within reach of concentrations of population; Conserve natural resources in forms that will prevent erosion; Protect adequate and safe water supplies; Preserve scenic natural beauties and open spaces.”

Method of Assessment: In valuing real estate for purposes of taxation by any county, city or town which has adopted a current use ordinance, the commissioner of the revenue or duly appointed assessor shall consider only those indicia of value which such real estate has for agricultural, horticultural, forest or open space use. In addition to use of his personal knowledge, judgment and experience as to the value of real estate in agricultural, horticultural, forest or open space use, he shall, in arriving at the value of such land, consider available evidence of agricultural, horticultural, forest or open space capability, and the recommendations of value of such real estate as made by the State Land Evaluation Advisory Council.

Eligibility Requirements

Application: Property owners must submit an application to the local assessing officer at least 60 days preceding the year for which such taxation is sought. However, in any year in which a general reassessment is being made, the property owner may submit such an application until 30 days have elapsed after the notice of increase in assessment is mailed, or 60 days preceding the tax year, whichever is later. In any locality that has adopted a fiscal tax year but continues to assess as of January 1, such application must be submitted for any year at least 60 days preceding the effective date of the assessment for such year. An application must be submitted whenever the use or acreage of such land previously approved changes.

Renewal: Not required, unless locality establishes otherwise.

Area Requirements: Minimum 20 acres, OR if the property contains less than 20 acres of forest area, the land must have greater than 50% canopy coverage and be certified by the State Forester in consultation with the local city or county arborist, if such a position exists within the locality, as important to the establishment and preservation of urban forests.

Plan Requirements: Forest land classified as "Non-productive" must have a management plan.

Unique or Functional Characteristics

(a) This scheme is optional by county, and a few rural counties have opted not to use it because it would damage their tax bases.

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Tax incentive specifically for providing access: 

Virginia has no tax incentives to provide hunter access

Tax Incentive when land is subject to Conservation Easement: 

Statute: Va. Code Ann. § 10.1-1011.

Valuation: Where an easement held pursuant to this chapter or the Open-Space Land Act by its terms is perpetual, neither the interest of the holder of a conservation easement nor a third-party right of enforcement of such an easement shall be subject to state or local taxation nor shall the owner of the fee be taxed for the interest of the holder of the easement.

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Income Tax: 

Virginia provides an income tax credit for the donation of conservation easements.

Statute: Taxation – Virginia Land Incentives Act of 1999 (Va. Code Ann. §§ 58.1-510 - 58.1-517).

Program: Credit to state income tax of 50% of the appraised fair market value of land if donated or after January 1, 2000, and 40% of the appraised fair market value if donated on or after January 1, 2007. Donations must be made to preserve open space. The maximum amount of credit for each taxable year shall not exceed: $50,000 for 2000, $75,000 for 2001, $100,000 for 2002 through 2008, $50,000 for 2009 and 20010, and $100,000 for 2011. The credit can be carried over for 10 years after original taxable year donated, unless donated in 2008 or 2009, when it can carry over up to 12 years. Developers of subdivisions cannot qualify in order to meet density requirements. Appraisers must adhere to statutory criteria of which there are legal consequences for deviation or any collusion. After 2007, landowners that apply for a credit worth $1 million or more are subject to additional scrutiny from Virginia’s Department of Conservation and Recreation. Public notice and comment may also be required. Over $1 million application provisions also apply to the buyer’s aggregate donated land from the preceding 11 years. The only exception to this is if 1) the owner to the parcel of land is different from previous owner; 2) the owner has never made a land donation before; and 3) the owner is not a family member to the previous owner. The state may grant not more than $100 million worth of credits, adjusted each year by the Consumer Price Index for Urban lands (CPI-U). Structures on appraised property are valued at 25% for pass-through entities. Pass-through entities are subject to a 2% fee on the appraised value, or $10,000, whatever is the lesser amount. Transferees can carry over credits for 11 years, or if purchased in 2009 or 2010, for 13 years.

Tax: 2% to 5.75% (depending on income).

Enacted: 1999

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Hunter Access Program: 

No programs classified as “state administrated walk-in hunter access programs” were identified in this state via general internet search. However, for more accurate information regarding this state’s hunter access programs or efforts, please view the Hunting Heritage Action Plan Hunter Access Program Assessment Survey Report.

Case Law

City of Virginia Beach v. Flippen, 1996, 467 S.E.2d 471, 251 Va. 358

-City was included in definition of “landowner,” in statute that provided landowner owed no duty of care to keep land or premises safe for entry or use by others for recreational use, for the city's maintenance of stairways that were located on private land and that provided public access to beach; city's actions in providing and maintaining public access over private land for recreational purposes was consistent with purposes of statute.