property easement laws

There are instances where property owners want to move back the property line to accommodate a new structure or include a building. As a business owner, you have many options for paying yourself, but each comes with tax implications. See alsoHayes v. City of Loveland, 651 P.2d 466, 468 (Colo.App. ; After disability lifted: 5 yrs. An easement doesn't allow the easement holder to occupy the land or to exclude others from the land unless they interfere with the easement holder's use. An easement is a nonpossessory interest in property owned by another.1 Formally defined, an easement is a right conferred by grant, prescription or necessity authorizing one to do or maintain something on the land of another, which, although a benefit to the land of the former, may be a burden on the land of the latter.2 As a practical matter, the ownership of an easement confers upon the easement holder only the right to use the property burdened by the easement for a specific purpose; legal title to and the right to possess the land itself remains with the propertys owner.3. After youve signed the contract, get it signed by a notary. 4. Arson. How Does an Easement Affect You and Your Property? Make sure you have the money available in your checking account to pay for the easement. An easement is a legal right to use someone elses land or property, such as the right to use their driveway to access your home. Meeting with a lawyer can help you understand your options and how to best protect your rights. LR Smith Invs., LLC v. Butler, 378 P.3d 743, 746 (Colo.App. 2. Actual Possession - The trespasser must be physically present on the land, treating it as his or her own. 3 (Amer. A utility company may have an easement on your property to access an electrical pole. For more tips from our Legal co-author, including how to negotiate a better deal on your easement, read on! 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. Courts may find that an easement has been created by estoppel if (1) the servient estate owner permits another to use the land under circumstances in which it was reasonable to foresee that the user would substantially change his or her position, believing the permission would not be revoked; (2) the user substantially changed his or her position in reasonable reliance on that belief; and (3) injustice can only be avoided by establishing an easement in favor of the user.47, An easement by estoppel is an equitable remedy, recognizing that when a landowner induces another to change his or her position in reliance on the promise of an easement, the landowner is estopped from later denying that easements existence. It is usually more productive to negotiate face-to-face. Thank you for subscribing to our newsletter! Likewise, if the utility company has an easement to erect poles or power lines, your property value could take a nosedive. Criminal Law and Procedure; Title 36. An easement is a legal right to use property you do not own. Many common terms associated with easements are not routinely encountered in other areas of law. When the zoning authorities impose setbacks, it is difficult to remove them. For example, if you have routinely used a neighbors driveway to access your own camp, then you might have created an easement simply through routine use. An owner can grant an easement for a limited amount of time or indefinitely. Co. v. Sandberg, 350 P.3d 924, 93132 (Colo.App. For example, you can begin the document: This Grant of Easement is made and entered into as of the Fourth day of August, 2016, by and among Michael J. Smith, Grantor and Alice K. Jones, Grantee., For example, you could write: In consideration of Five Hundred Dollars ($500.00) and other good and valuable consideration from the Grantee, the Grantor hereby grants the following., For example, Whereas Grantee is building a house and needs access to her property, and Whereas Grantor desires to grant to Grantee an easement over the servient parcel for the uses set forth herein.. There are many types, but these are some of the features that help define them: Prescriptive easement: Prescriptive describes the way in which an easement comes into being. Under some circumstances, misuse or the sale of aservient estatemay terminate aneasement. By signing up you are agreeing to receive emails according to our privacy policy. Easements may also be acquired by prescriptive use, similar to the acquisition of property through adverse possession. For example, you could say, Grantor grants Grantee the right to use the driveway for entering and exiting Grantees property only.. (A) A person who wilfully and maliciously causes an explosion, sets fire to, burns, or causes to be burned or aids, counsels, or procures a burning that results in damage to a building, structure, or any property specified in subsections (B) and (C), whether the property of the person or another, which results, either directly or indirectly, in death or serious If you need help drafting the agreement, then you should contact a lawyer. You can find out by looking over your paperwork. Adverse Possession. But you would need to go to court to challenge an easement, so its not easy to do in the middle of home buying. Maralex Res., Inc. v. Chamberlain, P.3d 399, 404 (Colo.App. (Thats right: easements can cover rights to air space, area underground, and the surface of land. The other side might immediately reject your offer. 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. Next, learn about how homeowners association rules might affect the home you want to buy. Learn more about FindLaws newsletters, including our terms of use and privacy policy. Osborn & Caywood Ditch Co. v. Green, 673 P.2d 380, 383 (Colo.App. 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. 1989). 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. We are not a law firm, or a substitute for an attorney or law firm. Click or touch this button to go to the COBAR LinkedIn page. For example, a common easement is one that a utility company has for placing cables, pipes, or other equipment under or over the property to allow property owners to use their utilities. You might want an easement to store equipment on someones property. Find answers to your questions about fence height limits, whos responsible for the maintenance of a shared fence, unsightly fences, and more. Property can be considered lost, mislaid or abandoned depending on the circumstances under which it is found by the next An easement may be implied by prior use when (1) the servient and dominant estates were, at one time, under common ownership; (2) the alleged use was exercised before the severance of title; (3) the use was not temporary; (4) the continuation of the use is reasonably necessary to enjoyment of the parcel; and (5) a contrary intention is neither expressed nor implied by the parties.32 An easement implied by prior use is similar to an easement implied by necessity in that the existence of both types of easements is predicated upon the actions and intentions of the parties at the time the affected parcels were severed from common ownership. You can attach an exhibit of the legal description of your property, just as you did for the servient estate. Here is a brief introduction to adverse possession laws in California. The content is Many matters concerning easements are relatively straightforward, such as drafting an express easement where the parties agree to the essential terms. 19. 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. This type of easement does not permit a right of entry upon the servient estate, but rather requires the servient estate owner to restrict his or her use of the property for the benefit of another. View Easements . Include your email address to get a message when this question is answered. In exchange for Rombergs abandonment of the easement, the adjacent landowners agreed to construct and pave alternative access to the Romberg property and provide Romberg with underground utility lines. If you plan to build a new construction home or an addition, its especially important to know whether there are any easements on a property before you buy. If you fall in love with a home thats perfect and in the right neighborhood, but it has an extremely narrow driveway, you might be pleased to find out that you have an easement that allows you use a few feet of your neighbors property to get in and out of your car. In. Easements that are not expressed in writing by the parties may arise out of the existence of certain facts implied from the transaction.26 Courts have recognized a number of instances in which an easement may be created through implication, including by necessity, prior use, prescriptive or adverse use, and estoppel. Including an accurate legal property description is essential when real estate is being transferred or mortgaged. Under adverse possession laws, the use of the land must be: The transfer ofeasementsin gross for commercial uses such as telephones, pipelines, transmission lines, and railroads is often permitted. Be sure you understand the effect and use of this important title transfer document. Here is a brief introduction to adverse possession laws in California. View Statute 76-2,116 Property subject to easement; how assessed. Time for Landowner to Challenge/Effect of Landowner's Disability. You'll want to check if you're the easement user, known as the dominant property, or if you're the property owner who must allow your neighbor to use your property, known as the servient property. The parcel was later divided such that Proper purchased the home and surrounding property, and another party purchased the caf and the parking lot. Utility easements are often a problem because if you want to build something such as an in-ground swimming pool on your own land, you might be unable to do so if there are pipes and cables in the way. Civil Law and Procedure; Title 35. For example, you may decide to allow your neighbor to use your property to access the lake that's only behind your house. For more tips from our Legal co-author, including how to negotiate a better deal on your easement, read on! A landowner having an easement on her land is also known as the easement owner. Clinton M. Sandvick worked as a civil litigator in California for over 7 years. The servient property owner cannot block the use of the easement. However, several states have enacted statutes designed to facilitate the transfer ofeasementsin gross. If the easement is something which can be transferred when you sell your property, then you need to note that it runs with the land. For example, you could state, The perpetual easement is a covenant intended to run with the land and is appurtenant to the dominant parcel. This means that when you sell the land, you sell the easement along with it. Bringing a lawsuit to contest the easement. Read more. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Check with the county clerk or county land records office to find out whether the prior deed shows an easement. Found out the home youre planning to buy has an easement on the property? For example, you might live several towns over but want to purchase the easement to access a lake. You want to know what is considered standard. 5 (1) A person transferring land in fee simple must deliver to the transferee a transfer registrable under the Land Title Act. Open and Notorious Possession - The act of trespassing cannot be secret. 32. You want to make sure you have all your assets covered, but did you know that not all property can be bequeathed through a last will and testament? A surveyor will access the corresponding documents and then use special instruments to mark the boundaries of your property. Thinking about purchasing land with one or more co-buyers? Or maybe youve never heard of adverse possession before. All easements are either affirmative or negative. a contribution of a qualified real property interest that is an easement or other restriction on the exterior of the building is deductible only if it meets all of the following conditions. This kind of easement may sometimes be referred to as a right of way. However, you do not have to be a neighboring land owner to get an easement. However, with time and study, attorneys can learn to properly draft new easements, interpret existing easements, explain to clients whether an easement may be implied, and advise them accordingly. Colorado courts have routinely found that [w]ords which clearly show the intention to give an easement are adequate to demonstrate its creation, provided the language in the instrument is sufficiently definite and certain in its terms.22 Generally, vagueness in describing an easement or its location will not invalidate the easements existence. Unlike express easements, an implied easement has legal effect only if the claimant successfully proves all of the required elements for the type of easement sought and, as a result, obtains a court order or decree acknowledging that easements existence. 209.012. She does family This is called "adverse possession," based on the notion that land should not sit idle. Assn, Inc. v. Arrabelle at Vail Square LLC, 382 P.3d 1275, 1277 (Colo.App. 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. 2000). City of Steamboat Springs v. Johnson, 252 P.3d 1142, 1146 (Colo.App. By drafting a living trust, designating beneficiaries, and holding property jointly, you may be able to avoid probate. Under Colorado law, easements may be created in a variety of ways. 37. The confusion over property boundaries is the basis of many neighbor disputes, including encroachments (or perceived encroachments) on one's property. Easementsare usually created by a transfer in a deed or some otherwritten documentsuch as a will or contract. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. However, if you are using a certain piece of land, then you might need a surveyor to mark off the metes and bounds. Bijou Irr. Thanks! This article updates and expands on the concepts discussed in that series. If the easements owner conveys or relinquishes the easement to the servient estate owner, the easement will cease to exist through the merger of the dominant and servient estates into common ownership. This article has been viewed 115,978 times. keys to navigate, use enter to select, Stay up-to-date with how the law affects your life. The easement holder signs a release to the servient property holder, removing the easement. the location and character of the properties that are burdened and benefited by the easement; (2) the use made of those properties before and after the easement was created; (3) the character of the surrounding area; (4) the existence and contours of any general development plan for the area; and (5) consideration paid for the easement. However, any easement is subject to termination by other means, as discussed below. Under Restatement 478, [a]n increase in the burden on the servient tenement beyond that caused by the adverse use by which an easement was created is an undue increase if it is such an increase as, it may reasonably be assumed, would have provoked an interruption in the adverse use had the increase occurred during the prescriptive period. In Clinger, because the evidence demonstrated only a limited increase in the outfitters use of the easement, the Court determined that the increased burden to the servient estate was not substantial enough to require a limitation on the easement.69. 55. Firms. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. The written document must identify with reasonable certainty that an easement has been created, along with the dominant and servient estates; however, courts may decline to recognize an easement that has not been identified or defined with sufficient detail.23 For instance, courts have determined that a deed validly conveyed an easement by accurately reciting the size, dimensions, type of use, and location of the easement on the servient tenement, as well as the legal description of the servient property.24 Generally speaking, if the servient estates location is described with reasonable certainty, an express easement will not be deemed void for vagueness.25 If the conveyance documents clearly include an easement but do not describe its location with specificity, the easement may still be enforceable by the parties, but in such instances, either an amended or correction deed or a judicial decree will be necessary to determine and fix the easements location. The dominant easement holder gives up the easement by transferring the easement in a deed to the servient owner. Most fences are built right on top of property boundary lines, which means the fence is the property of the homeowners on both sides of the fence. Easements on personal property can go unnoticed and remain trouble-free for a long time. Brush Creek Airport, L.L.C. Id. Under, [a]n increase in the burden on the servient tenement beyond that caused by the adverse use by which an easement was created is an undue increase if it is such an increase as, it may reasonably be assumed, would have provoked an interruption in the adverse use had the increase occurred during the prescriptive period. In. This portion of the site is for informational purposes only. Contact the utility companies to see if they have any easements on your property. 34. Necessity. By definition, an easement requires two tracts of land to be held under separate ownership, with one tract burdened and the other benefited by the existence and use of the easement. This article was co-authored by Clinton M. Sandvick, JD, PhD. keys to navigate, use enter to select, Stay up-to-date with how the law affects your life. That could be a good thing, a bad thing, or an entirely neutral thing. This type of easement runs with the land to which it is attached, so it passes to successive owners of the dominant estate and the servient estate, irrespective of whether the easement is referenced in the deed.10 Under Colorado law, and in most other jurisdictions, easements are presumed to be appurtenant.11, An easement in gross is not attached to the land itself and, therefore, does not run with the land. You should staple your copy of the easement agreement to your copy of the deeds. 20. Your Recorder of Deeds office should be able to tell you whether witnesses are required. When the boundary is changed, it gets recorded in the county office and made available to the public. Coordinating Editor: Christopher D. Bryan . or an addition, its especially important to know whether there are any easements on a property before you buy. Get help with real estate management and planning, Why You Need to Conduct a Property Title Search. Learn about fences and local ordinances, fences on boundary lines, and how to deal with a dispute. 78. In Lazy Dog Ranch v. Telluray Ranch Corp., the Colorado Supreme Court determined that the examination of extrinsic evidence may be relevant to determining whether a deed conveying an easement is actually ambiguous.58, Examples of extrinsic evidence that may prove useful to determining the parties intent include (1) the location and character of the properties that are burdened and benefited by the easement; (2) the use made of those properties before and after the easement was created; (3) the character of the surrounding area; (4) the existence and contours of any general development plan for the area; and (5) consideration paid for the easement.59 If, upon consideration of such evidence, the court finds that the conveyance document is not ambiguous, the court must disregard the extrinsic evidence, and the plain language of the instrument must be given full force and effect.60 However, should the court find that the document is ambiguous, the court must further examine the extrinsic evidence submitted by the parties to determine the parties actual intent in creating and granting the easement.61. Real estate law can be complicated, especially where concepts like adverse possession are concerned. Some of the ways to remove an easement include the following: Real estate law and easements are tricky, so hiring a real estate attorney is a good idea when trying to discover what hidden issues come with the property. Find answers to your questions about how to ascertain your exact boundary lines, reaching an agreement with neighbors, and more. (Updated 11/09/2021.) 2006). View Statute 76-2,115 Easement; enforceability; duration. If your neighbor received an easement to ensure a view of a lake, for example, you couldnt renovate, expand, or even plant a tree that would block your neighbors view. Irrespective of whether the easement is conveyed by grant or reservation, no particular words are necessary to convey an easement in writing. : Both appurtenant and gross easements can grant access to public or private entities or properties. State adverse possession laws can vary significantly. Thus, in Matoush v. Lovingood, the Colorado Supreme Court concluded that this statute not only permits the acquisition of an easement through adverse use, but also allows an easement to be terminated in the same manner.80 That is, an easement may be terminated if the servient estate owner uses the easement in a manner that is adverse to the easement holders right of use, open or notorious, and continuous and uninterrupted for the statutorily prescribed timeframe of 18 years.81 One need not also prove that an easement has been abandoned to successfully declare that the easement has been terminated by adverse use.82 As discussed above, a successful claim to terminate an easement by abandonment depends on the easement holders conduct. ( easements can cover rights to air space right, easement, on. Terms, including our terms of Service apply if they have easements have! 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