Easement Disputes Don’t Have to be Gross: Using Your Neighbor’s Property with Ease

Are you looking to buy a property that has an existing easement on it? Do you want to establish an easement with your neighbor? Do you want to terminate an existing easement? This blog provides an overview of easements in Colorado.

What is an easement?

Most easements generally serve the same purpose: to grant a nonpossessory right to use one’s property to someone who does not own the property. These types of easements are called affirmative easements. Although you have a right to physically use someone else’s property in some way, they still retain ownership of the land. For example, your neighbor may grant you the right to use their driveway to access your land. You have the right to use their driveway, but you do not own it.

An easement can also be used to restrict the use of the land subject to the easement. This is referred to as a negative easement, and it can be something like your neighbor agreeing to not block your mountain view with their home construction.

An easement has a “dominant estate” that burdens the land of the “servient estate.” Reciprocal easements are ones in which all properties involved are both benefited and burdened by the use and enjoyment of the reciprocal easement. 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. In residential settings, reciprocal easements often involve the use of a shared driveway among two or more adjacent parcels.

What are easements “appurtenant” and easements “in gross”?

Easements can be “appurtenant” or “in gross.” An easement appurtenant attaches to a parcel of land and is incapable of existence separate from the land to which it is attached. An easement in gross, on the other hand, does not attach to the land and does not belong to any person by virtue of his or her ownership in the land. An easement in gross is more properly deemed as a personal interest, or right to use the land of another. Generally, an easement in gross is personal to the grantee and cannot be transferred unless the parties intend that it be transferrable.

How do I create an easement?

Easements are created expressly or implicitly. In other words, an easement can be created through (1) a written agreement, usually included in the property title, or (2) the dominate estate’s use, authorized or unauthorized, of the burdened property.

An express easement is created through a written agreement. Generally, this type of easement comes about when two people or two entities have come to an arrangement allowing one party rights of access or use of a portion of another’s property. It must detail exactly what portions of the property are subject to the easement and what rights are granted to the easement holder. Express easements are commonly created through a reservation in a deed or a grant. Express easements are permanent unless the agreement stipulates a set period of time for the easement to be in effect.

On the other hand, implied easements only exist when someone successfully proves all the required elements for the type of easement sought. If successful, that person must obtain a court order or decree acknowledging that easement’s existence.

A landowner cannot create an easement on their own property. The one exception to this general rule is that a developer creating a subdivision can record easements intended to run with the land and benefit the subdivided lots.

In addition, the Earnest Money Holder (the third-party holder of the deposit ) has three options: The Holder can (1) wait for litigation, (2) interplead and deposit the Money with the court, or (3) tell Buyer and Seller that if it does not receive a copy of the process (summons and complaint) within 120 days then it will release it back the Buyer. Whatever option they choose is in their sole discretion, so the main thing you should focus on as the buyer is coming to an agreement with the seller for your Earnest Money return.

What types of implied easements are there?

Implied easements include Easements by Necessity, Easements by Prior Use, Prescriptive Easements, and Easements by Estoppel.

An easement by necessity is an easement implied by law under certain circumstances. In most situations, the easement is implied in favor of someone who has no access to their land except over the land of another. The facts must show that there currently exists a practical inability to have access any other way than by way of necessity.

Easements by implication from prior use require a showing that the prior owner used the property in such a way that the person to whom the severed property was transferred reasonably believed that the continued use of the property was intended to be permanent. The easement must be reasonably necessary, and the prior use must be apparent. An easement by implication from prior use is most commonly created when a parcel of property that was once under common ownership is severed into a dominant and servient estate. For example, these types of easements arise when one person or party possesses title to separate parcels of land under single ownership, and later the parcels are separated or split, and one parcel is conveyed to another party. Then, after splitting or “severing” one parcel from the other, the severed property could still have an easement upon the other because of prior use.

A prescriptive easement is established through the adverse use of property. In Colorado, an easement by prescription is established when the prescriptive use is: 1) open or notorious, 2) continued without effective interruption for 18 years, and 3) the use was either a) adverse or b) pursuant to an attempted, but ineffective grant. Unlike adverse possession, prescriptive easements only create a right to continue using the land in a certain way, they do not grant you title to the land.

An easement by estoppel is considered an equitable remedy implied or ordered by a court. Easement by estoppel recognizes that when a landowner induces another to change position in reliance upon their promise, they are estopped from then denying the existence of the rights simply because they did not meet the formal conveyance rules. An easement by estoppel is created when: 1) the owner of the servient estate allowed another to use that land when it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, 2) the user substantially changed position in reasonable reliance on that belief, and 3) injustice can only be avoided by establishment of an easement.

What other types of easements are there?

A landowner with property containing agricultural, scenic, environmental, historic, or development value who wishes to preserve its current use may consider placing a conservation or scenic easement upon the property. If a landowner donates an entire parcel or portion of property for conservation purposes, that qualified contribution can provide an income, gift, or estate tax deduction. Colorado provides a generous state income tax credit of as much as 50 percent of the fair market value of the conservation easement for a qualifying donation of a perpetual “conservation easement in gross”.

If a neighbor’s fence or tree threatens to block a scenic view from someone’s home, unfortunately the property owner’s options to keep the view are limited. There’s no right under Colorado law to have a view easement. If an individual purchases a home that has a mountain view, they are not always guaranteed to keep that view if something on their neighbor’s property ends up blocking that view later. If a property owner does want to maintain their property’s view, they may have to execute a contract on the property.

Can I make changes to land burdened by an easement?

In short, yes. Unless the terms of the easement expressly deny you this right, the owner the burdened land is entitled to make reasonable changes in the location or dimensions of an easement. Further, the burdened owner, at their own expense, may permit normal use or development of the burdened land, but only if the changes do not significantly lessen the utility of the easement, increase burdens on the easement holder, or frustrate the purpose for which the easement was created.

Can I terminate an easement?

Yes, you can terminate an easement. An easement can terminate through expiration of its own terms, such as a stipulation in the deed or agreement. Easements may also be terminated through abandonment, or merger, which occurs when the burdened and benefitted property are under the same ownership, effectively ending the necessity for the easement. An easement’s termination will generally require the same formalities as the grant of the easement.

GLO has extensive experience forming easements and resolving easement disputes that may arise. If you want to create an easement, terminate an easement, or understand your legal rights regarding an existing easement, fill out an interest form today to see if GLO can help you.

GLO has prepared this blog to provide general information on legal issues that may be of interest. This blog does not provide legal advice for any specific situation and this does not create an attorney-client relationship between any reader and GLO or its attorneys. GLO engages clients only through specific fee arrangements and signed engagement letters. GLO does not guarantee any results.