An easement is a right of use over the property of another. It gives the easement holder or grantee a non-possessory interest in the land of the grantor. Easements are generally considered to be permanent, unless the written agreement between the parties says otherwise.
How Easements Are Created
An easement may be for the benefit of the adjoining land, regardless of who owns that land. Easements may also be for the benefit of a specific individual. Colorado law recognizes several categories of easements.
Implied Easements - An
implied easement is one which is not expressed in writing by the parties but
can be implied from the facts surrounding the transaction. Examples of implied easements are easements
by way of necessity and easements by preexisting use.
Easements by Way of Necessity – Under Colorado law, a conveyance of land from one party to another carries with it an implication that the grantor intended to convey to the grantee all easements necessary for the grantee's beneficial and reasonable use of the property. If the following three elements are present, Colorado courts will find that an easement by way of necessity exists:
- Title to the dominant estate (the land which benefits from the easement) and the servient estate (the land which is subject to the easement) must have been simultaneously held by the grantor;
- Necessity for the easement existed at the time of the conveyance from the grantor to the grantee; and
- That the need for the easement is great.
Easements by Preexisting Use - As with an easement by way of necessity, an easement by preexisting use requires a demonstration by the grantee that at the time of the conveyance, the grantor owned both the dominant and the servient estates and that the need for the easement is great. He must also prove:
- That the preexisting use benefits the dominant estate and burdens the servient estate; and
- The grantor used the property (for the preexisting use) for such a long period of time prior to the conveyance to the grantee that the grantee had a right to assume that the alteration for the preexisting use was meant to be permanent.
Express Easements - An express easement is one created by the written agreement of the parties. Typically the easement must describe the location and dimensions of the property being conveyed as well as the scope of the interest being conveyed. In instances where this information is not contained in the writing which created the easement, courts look to how the property which is subject to the easement has been used in the past.
Prescriptive Easements - A prescriptive easement is a right to use another's land which is not inconsistent with with the owner's use. Under Colorado law, a prescriptive easement is acquired by open and notorious, continuous and adverse use of the land for 18 years.
Common Easement Issues
Easement issues arise when property improvements encroach on adjoining land. Encroachments often arise in relation to:
- Retaining Walls;
- Driveways; and
Encroachment issues may also arise when one property owner begins using adjoining property without the consent of the owner of the adjoining property. Landlocked land may also give rise to easement and encroachment issues.
Getting Legal Help
The most effective means of avoiding encroachment issues is to have a survey completed before erecting improvements on your property. A survey will identify the property boundary lines and allow you to negotiate an easement with the adjoining property owner if necessary. However, if you are involved in a dispute with a neighbor over an easement or encroachment issue, you should contact an experienced real estate attorney.