How is a prescriptive easement acquired under Colorado law?

A prescriptive easement is one upon another’s property without the property owner’s consent for a period of 18 years.  The use must not be inconsistent with the owner’s use of the land.  The problem with a prescriptive easement is that it is not recorded with the title and does not have a specific location or size, and furthermore may change over time due to erosion and use.

When you are selling your property the prescriptive easement must be listed on the title.  In Colorado, as in other states, one cannot just obtain a prescriptive easement.  In order to gain this easement, you must show that you have crossed or used that portion of the property for 18 years without permission.  If you purchase a property with such an easement, the easement must remain in place.  In situations where the easement description is not in writing, the court will decide how the property has been used in the past – most often this will be a pathway or vehicle way. 

Additionally, in Colorado, the easement must be “open and notorious” in order to show use.  In other words, the use must be obvious to anyone including the owner in order to gain prescription. 

In order show continued use for 18 years and gain a prescriptive easement, you should contact an experienced real estate attorney for assistance and advice.