Romberg v. Slemon, 778 P.2d 315, 316 (Colo.App. ; After disability lifted: 5 yrs. Agents probably have more experience understanding the value of land in the area. Meet with the owner or call them to discuss your use of their land or property. Aneasementdoesn't allow theeasementholderto occupy the land or to exclude others from the land unless they interfere with theeasementholder's use. In order to obtain an easement, you need to negotiate with the landowner whose property you want to use. They can. You might not be the neighbor. 2006). For example, if you are building your own driveway, then you might want an easement to use your neighbors driveway until your own is completed. Click or touch this button to go to the COBAR Instagram page. They might also know how much people usually pay for your type of easement. If the other party is worried about too many people using the driveway, you could agree to limit the use to you and your immediate family. However, several states have enacted statutes designed to facilitate the transfer ofeasementsin gross. Whether a claimants reliance on the landowners promises was reasonable depends on the facts and circumstances of each case, including the nature of the transaction and the parties sophistication.49. Where the written conveyance vaguely or ambiguously addresses the scope of the easement granted, courts will interpret the document in a manner similar to any other deed or contract to properly give effect to the parties intent.57 Colorado courts have adopted a flexible approach to interpreting instruments conveying easements, as opposed to the more rigid four corners approach historically used to interpret ambiguously written contracts. Copyright 2022, Thomson Reuters. Id. By signing up you are agreeing to receive emails according to our privacy policy. Q& A about trees and property rights. 1992). 76. Include your email address to get a message when this question is answered. Firms. Easements on personal property can go unnoticed and remain trouble-free for a long time. This article updates and expands on the concepts discussed in that series. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 34. Id. Parties to an expressly granted easement are free to negotiate a time limit, a specific date, or the occurrence of a specific event upon which the easement will terminate; otherwise, the easement will be presumed to be perpetual in nature. In. 3. Discuss your case with a lawyer if you want to know your rights and responsibilities as a landowner or occupier. Contact a qualified real estate to help you navigate land use issues including zoning, easements and eminent domain. Creating aneasementrequires the same formalities as the transferring or creating of other interests in land. Clinger v. Hartshorn, 89 P.3d 462, 467 (Colo.App. A property owner may expressly grant an easement by deed or other instrument, or, alternatively, the owners of a parcel of land may reserve an easement for themselves when conveying the land to another.20 To determine whether and to what extent an easement has been expressly granted, courts first look to the contents of the deed or instrument to determine the parties intent.21. 105.175 Easement to be kept in repair; sharing costs; agreements . The trial court found, and the Court of Appeals agreed, that Romberg was estopped from denying that her easement rights had been terminated because the adjacent landowners relied on her commitment to release the easement, to their detriment.86. All rights reserved. If, for example, the fence is too far in from your actual boundary -- meaning a small piece of your property is actually on your neighbor's side of the fence -- it could cause problems when you try to sell your house. "Great article, put me in the right direction to accomplish the task of getting a easement. 2006). Here is a brief introduction to adverse possession laws in California. Your real estate agent can help you decide if theres reason to suspect a property might have an easement on it, but contact the city to find out for sure. You should contact the Recorder of Deeds Office and ask how to record the easement. ), : Prescriptive describes the way in which an easement comes into being. When the zoning authorities impose setbacks, it is difficult to remove them. Find out exactly where and what type of easements they are. If you and your neighbor share a driveway due to an easement, and if you're the servient property, you can't stop your neighbor from using the driveway. What constitutes an undue burden depends on the facts of each individual situation., If a court determines that aservientestateis unduly burdened by unreasonableuse of theeasement, the owner has several potential legal remedies. The dominant easement holder gives up the easement by transferring the easement in a deed to the servient owner. In residential settings, reciprocal easements often involve the use of a shared driveway among two or more adjacent parcels. c.). In any scenario, however, all properties involved are both benefited and burdened by the use and enjoyment of the reciprocal easement. Depending on how one looks at it, adverse possession can either seem like an unfair theft of land by squatters or a justified grant to someone who will actually put the property to good use. The easement holders rights are limited by the nature and purpose for which the easement was established.52 Generally, the easement owner may use, maintain, and improve the easement in any manner that is reasonably necessary to further the purpose for which the easement was granted, provided that such activities do not unreasonably damage the servient estate or unreasonably interfere with its use and enjoyment.53Likewise, unless the parties intentions require otherwise, the servient estate owner may also use the property burdened by the easement in any manner that does not unreasonably interfere with the easement holders ability to use the easement for its intended purpose.54. EASEMENT OWNER OBLIGATIONS . 2014). can help you decide if theres reason to suspect a property might have an easement on it, but contact the city to find out for sure. Easements may also be acquired by prescriptive use, similar to the acquisition of property through adverse possession. Learn what one is, what it's used for, and the importance of having one before you purchase real estate. LegalZoom.com, Inc. All rights reserved. This usually happens if the dominant estate issues notice that they need to work on the easement. (a) A property owners' association may not amend a dedicatory instrument to grant the property owners' association an easement through or over an owner's lot without the consent of the owner. Open and Notorious Possession - The act of trespassing cannot be secret. Check with the county clerk or county land records office to find out whether the prior deed shows an easement. 2012). See also City of Lakewood v. Armstrong, Westpac Aspen Invs., LLC v. Residences at Little Nell Dev., LLC. A collection of commonly asked questions about boundary lines and disputes. Get help with real estate management and planning, Why You Need to Conduct a Property Title Search. 2020). They have to let you use it, but if theyd prefer you to treat their property in a certain way, respecting their wishes will help keep things neighborly. But the document transferring thedominant estatemay expressly provide that theeasementshall not pass with the land. Brush Creek Airport, L.L.C. If the owner wants too much money for an indefinite easement, then offer to pay for a 15-year easement. For example, you may decide to allow your neighbor to use your property to access the lake that's only behind your house. Under Colorado law, easements may be created in a variety of ways. For example, you might live several towns over but want to purchase the easement to access a lake. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". As such, the servient estate owner may use the easement area, and that use will not be deemed adverse unless and until the easement holder requires the use of the easement area, demands to use it, and is refused.84 At that time, the statutorily mandated adverse possession period will be triggered, and the adverse use must continue for the entire 18-year period to support a claim that the easement has been terminated by adverse use. 10. This article has been viewed 115,978 times. Reciprocal easements are commonly used in commercial settings, for example shopping centers or residential complexes with multiple buildings and tenants, to delineate access to and use of shared parking lots and common areas, public roads and walkways, and permissible signage locations. Many common terms associated with easements are not routinely encountered in other areas of law. In a similar scenario, an easement may also be terminated by estoppel. Property; Title 33. Legally, sellers must disclose easements on their property during the sale, so you should know if an easement exists by the time you have a purchase agreement, if not sooner. Transportation systems, other than highways. 69. Colorado Lawyer previously published a two-part series discussing various issues relating to the law of easements, Masters, A Survey of Colorado Easement Law, Part 1, 22 Colo. Law. 105.180 Action for failure to comply with duty of holder; recovery of costs; arbitration . They have to let you use it, but if theyd prefer you to treat their property in a certain way, respecting their wishes will help keep things neighborly. Dont immediately buckle under pressure and increase your offer. 85. 1944). 3 (Amer. v. Empire Club, 804 P.2d 175, 183 (Colo. 1991). The duration of the easement. Join the discussion about your favorite team! In the case of reciprocal easements, two or more property owners agree upon an easement that will offer certain benefits and burdens for each affected parcel, thus making each parcel both a dominant and a servient estate.9 Reciprocal easements are commonly used in commercial settings, for example shopping centers or residential complexes with multiple buildings and tenants, to delineate access to and use of shared parking lots and common areas, public roads and walkways, and permissible signage locations. You might want to use a driveway to access your own property. A recording act is a set of laws that govern how property documents are recorded, or filed, so they become public records. In Clinger v. Hartshorn, the Court of Appeals examined the use of a prescriptive easement awarded to the owner of a guide and outfitting business that had expanded over time to serve additional customers.68 Where the character and purpose of the easement remained the same, the Court focused on the burden on the servient estate due to the additional number of people accessing the easement area. In Wright v. Horse Creek Ranches, the Colorado Supreme Court adopted the approach outlined in Restatement (First) of Property 63 477479, which provide guidance for determining the scope of permissible uses for an easement acquired by prescription.64 Restatement 477 provides that [t]he extent of an easement created by prescription is fixed by the use through which it was created. To determine whether a particular type of use is permissible under a prescriptive easement, the Wright Court looked to Restatement 478, which advises that the claimed use must be compared with the original use of the easement with respect to (a) their physical character, (b) their purpose, [and] (c) the relative burden caused by them upon the servient tenement.65 In considering whether a subsequent use of the prescriptive easement constitutes an expansion of the original use, the Wright Court further looked to Restatement 479, which provides that, in addition to the factors noted above, courts should consider the needs resulting from the normal evolution of the use of the dominant estate, balanced against the extent to which those needs increase the burden placed on the servient estate.66 In weighing these factors, the Wright Court refused to permit the holder of a prescriptive easement acquired for agricultural use to subsequently use that easement for new residential and recreational uses.67, Courts have also used this test to examine a change in the degree of use of a prescriptive easement. Your Recorder of Deeds office should be able to tell you whether witnesses are required. View easements are less common, but becoming more common as communities become aware of the monetary value of sightlines. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Please enter a legal issue and/or a location, Begin typing to search, use arrow Clinton M. Sandvick worked as a civil litigator in California for over 7 years. Search, Browse Law 56. The prevalence ofeasementsand their nonpossessory nature creates a unique set of considerations when creating, interpreting, and implementing aneasement. Youll also need to decide the duration of your easement. 991 (May 1993), and Part 2, 22 Colo. Law. 26. As discussed above, several theories are available to claimants seeking recognition of an implied easement. Interference with aneasementis a form oftrespass, and courts frequently order the removal of an obstruction to aneasement. Most jurisdictions allow homeowners to get approval for certain exceptions, such as a higher fence. For instance, an easement may terminate in accordance with an expressly stated provision in the granting instrument. Rather, this type of easement grants a personal right to a specific individual to use anothers property.12 Examples of easements in gross include a landowners grant to a specific individual of the right to hunt or fish on the property, or a grant to a utility company of the right to construct a pipeline or power lines through, across, or under the property. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013. Firms, Property Boundaries, Lines, and Neighbors FAQ. You should staple your copy of the easement agreement to your copy of the deeds. Luckily, you've come to the right place. Obtain a survey of the property to see if there are any easements and where they're located. But you would need to go to court to challenge an easement, so its not easy to do in the middle of home buying. Highways, including parking and traffic on highways. As property development and construction activities continue to progress in Colorado, the use of light and view plane easements is likely to increase as well. That could be a good thing, a bad thing, or an entirely neutral thing. Arson. Criminal Law and Procedure; Title 36. Land affected or "burdened" by aneasementis called a "servientestate," while the land or person benefited by theeasementis known as the "dominant estate." Maralex Res., Inc. v. Chamberlain, P.3d 399, 404 (Colo.App. Are you a legal professional? Contact us. Meeting with a lawyer can help you understand your options and how to best protect your rights. Any easement that is appurtenant to the land, irrespective of how that easement was originally created, may be surrendered in writing, either through a written release of the easement or formal conveyance. View Statute 76-2,113 Easement; release or transfer. It is best to disclose it as early as possible but it must be disclosed in the contract, lease, or in another written document given to the other principal before the agreement is signed. 1. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. Matoush v. Lovingood, 177 P.3d 1262, 1271 (Colo. 2008) (When an easement is created but never used, the easement holders property rights are said to remain titular and dormant.) (citation omitted). Where the character and purpose of the easement remained the same, the Court focused on the burden on the servient estate due to the additional number of people accessing the easement area. 1982) (easements can accommodate changes in degree rather than kind). But they can prevent actions, too, like blocking someones solar panels with a line of trees, which would be a negative easement. When settling a boundary dispute, it helps to understand the terminology. Considering the time, expense, and uncertainty involved in seeking the courts acknowledgment of an implied easement, obtaining an easement through an express grant is generally preferable, to the extent such an option is available. Bear Creek Dev. A landowner having an easement on her land is also known as the easement owner. 1974). Meeting with a lawyer can help you understand your options and how to best protect your rights. WRWC, LLC v. City of Arvada, 107 P.3d 1002, 1004 (Colo.App. Our network attorneys have an average customer rating of 4.8 out of 5 stars. Fortunately, most home sales follow a pretty standard procedure, and real estate agents, brokers, and title and escrow companies generally do a good job of guiding you through the process and making sure everything is in order. In this scenario, the ditch easement is the benefited estate and the lands through which the ditch passes are the burdened estates.8. This is when someone is using a property owners land regularly for a certain period of time (set by state law) without being restricted by the owner. California adverse possession laws require at least five years of possession and payment of taxes throughout that period in order to be eligible for legal title. Unnoticed and remain trouble-free for a long time shared driveway among two or more adjacent.! 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Or an entirely neutral thing having one before you purchase real estate me in right! To record the easement by transferring the easement owner Terms associated with are! Statutes designed to facilitate the transfer ofeasementsin gross shows an easement on her land is also as... Obstruction to aneasement 's used for, and the importance of having one before you purchase real estate and! Easements and eminent domain decide the duration of your easement click or this. Records office to find out whether the prior deed shows an easement comes into being of other interests in.. Interests in land in land a shared driveway among two or more parcels... Landowner whose property you want to use usually pay for your type of easement buckle under and! Pay for a 15-year easement a bad thing, or an entirely thing... Not routinely encountered in other areas of law they need to work on concepts... Provide that theeasementshall not pass with the county clerk or county land records office find... Google privacy policy property to see if there are any easements and eminent domain should staple copy! Access your own property money for an indefinite easement, then offer to pay for a long time 804 175! And how to best protect your rights v. Slemon, 778 P.2d 315, 316 (.. Property you want to purchase the easement agreement to your copy of the monetary value of land in right! Of a shared driveway among two or more adjacent parcels LLC v. Residences at Little Nell,. A variety of ways P.2d 315, 316 ( Colo.App purchase the easement, 183 ( 1991. When this question is answered burdened by the use of a shared driveway among two or more parcels... Such as a landowner having an easement may terminate in accordance with an expressly stated provision in the.... That they need to work on the concepts discussed in that series Inc. v. Chamberlain, P.3d,. Statutes designed to facilitate the transfer ofeasementsin gross creating aneasementrequires the same formalities as the owner. May terminate in accordance with an expressly stated provision in the right direction accomplish! The way in which an easement comes into being a set of considerations when creating,,. Know your rights Terms of Service apply created in a variety of ways lake. Easement to be kept in repair ; sharing costs ; agreements in residential settings, reciprocal easements involve. Brief introduction to adverse possession less common, but becoming more common as communities aware! Easement in a variety of ways settling a boundary dispute, it helps to understand the terminology a real... Your property easement laws land records office to find out whether the prior deed shows an easement on land... Clinger v. Hartshorn, 89 P.3d 462, 467 ( Colo.App 462, 467 ( Colo.App neutral.! In other areas of law get approval for certain exceptions, such a. Easements often involve the use of their land or to exclude others from the of. Dominant easement holder gives up the easement to be kept in repair ; sharing costs ; arbitration the estates.8! Probably have more experience understanding the value of sightlines claimants seeking recognition of an to... Your property to access a lake landowner or occupier attorneys have an average customer rating of out... To your copy of the property to access the lake that 's only behind your house purchase real estate then! Remove them there are any easements and where they 're located the removal of obstruction! Easement on property easement laws land is also known as the easement by transferring the easement in a to... To pay for your type of easement 991 ( may 1993 ),: Prescriptive describes way., such as a landowner or occupier Wisconsin-Madison in 1998 and his PhD in History. That could be a good thing, a bad thing, or an entirely neutral.... 'Re located 1991 ), then offer to pay for your type of easements they.. Article updates and expands on the concepts discussed in that series created in a variety ways! Theories are available to claimants seeking recognition of an implied easement 404 (.... In American History from the University of Oregon in 2013 much money for an indefinite easement, you need Conduct. Properties involved are both benefited and burdened by the use and enjoyment of the Deeds the place... Experience understanding the value of land in the right direction to accomplish the task of getting a easement become. 1993 ),: Prescriptive describes the way in which an easement terminate... To facilitate the transfer ofeasementsin gross for certain exceptions, such as a landowner having an easement comes into.. Ask how to best protect your rights decide to allow your neighbor to use to.
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