Id. All easements are either affirmative or negative. , 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. Get help with real estate management and planning, Why You Need to Conduct a Property Title Search. , 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. not legal advice. If the easement owner becomes aware of or consents to actions taken by the servient estate owner to prevent the easement holders access to and use of the easement, and the easement holder takes no action consistent with preserving the easement rights, the easement may be terminated. 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. Should You Hire an Attorney When You Buy or Sell a Home? An easement is a "nonpossessory" property interest that allows the holder of the easement to have a right of way or use property that they do not own or possess. 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. Some easements, for example, remain after you buy the house, but others dont. See also Armstrong, 419 P.3d at 1010. 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. Transportation systems, other than highways. Thank you for subscribing to our newsletter! 68. 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. For more tips from our Legal co-author, including how to negotiate a better deal on your easement, read on! 32. In a similar scenario, an easement may also be terminated by estoppel. Allen v. Nickerson, 155 P.3d 595, 601 (Colo.App. If you want to negotiate in person, then you might want to hold off on contacting the owner until you will be around each other. Mosttypes ofeasementsare affirmative, which means that they allow the use of another's land. If you buy a house with an easement, odds are, youll need to abide by the rules of the easementbecause theyre not often put in place lightly. 17. To check for an easement on the property, you can take the following steps: If there's an easement on the property, it's usually listed on your deed. However, unlike an easement implied by necessity, an easement by prior use requires that the use be exercised before severance of the parcels from common ownership.33, For example, in Proper v. Greager,34 the Court of Appeals found that an easement had been implied by prior use where the owners of a parcel of land constructed a parking area and caf on one corner of the lot and a home elsewhere on the property. c.). Before building on your property or making any additions, its important to have the plot professionally surveyed. Whether an easement affects you and your property depends on what type of easement is on the land, how long it lasts, and whether it prevents you from doing what you want with your property. 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. 2016). For example, if you both own summer camps, then you might not want to negotiate during the winter. 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. Easements on personal property can go unnoticed and remain trouble-free for a long time. For example, you could type, Grantee is the owner of certain property also located in Cook County, Illinois, which property is more particularly described on Exhibit B attached hereto.. On the other hand, the owner of the servient land may make any use of that land that does not unduly interfere with theeasementholder'suse of theeasement. There are many types, but these are some of the features that help define them: Appurtenant versus gross easements: An appurtenant easement allows a property owner access to land thats only accessible through a neighbors land. Just make sure the terms of the easement guarantee it will stay with the property after you buy it, and be open and friendly with your neighbor about the rules of the easement. Lobato v. Taylor, 71 P.3d 938, 951 (Colo. 2002). Adverse Possession. A common form of easement is the right to use a driveway which run across your neighbor's property. It discusses various types of easements recognized by Colorado courts and how they may be created, used, and terminated. If the easement is to last indefinitely, then state, The easement is a perpetual easement.. When settling a boundary dispute, it helps to understand the terminology. In general, aneasementappurtenantis transferred with the dominant property even if this is not mentioned in the transferring document. 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. The email address cannot be subscribed. In these instances, the servient tenement owner typically agrees not to build on his or her property in such a manner that would prevent light from entering a neighboring property or that would obstruct a neighboring landowners view. 1990, c. L.15, s. 35. Learn what one is, what it's used for, and the importance of having one before you purchase real estate. Building a Fence on an Easement . You can find acceptable notary blocks by searching the Internet. These are some of the wayseasementscan be terminated. Next, learn about how homeowners association rules might affect the home you want to buy. For example, you may decide to allow your neighbor to use your property to access the lake that's only behind your house. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 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. Property lines are not carved in stone and may be changed through mutual agreement. Thompson v. Whinnery, 895 P.2d 537, 540 (Colo. 1995). 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. The best-known types are copyrights, patents, trademarks, and trade secrets.The modern concept of intellectual property developed in England in the 17th and 18th centuries. 24. Easements arent the only legal constraints that could be on a potential property. No easement in respect of wires or cables attached to property or buildings or passing through or carried over such property or buildings shall be deemed to have been acquired or shall hereafter be acquired by prescription or otherwise than by grant from the owner of the property or buildings. Trask v. Nozisko, 134 P.3d 544, 55051 (Colo.App. wikiHow is where trusted research and expert knowledge come together. But the document transferring thedominant estatemay expressly provide that theeasementshall not pass with the land. If a person uses another's real property for more than the time allowed by state laws on adverse possession (what's called the statute of limitation period), that person may be able to "derive an easement by prescription." 37. This article will provide some basic information abouteasementsincluding howeasementsare created and transferred. Easements typically confer an affirmative right to enter upon, and use a portion of, the servient estate for a specific purpose. (Thats right: easements can cover rights to air space, area underground, and the surface of land. Luckily, you've come to the right place. The confusion over property boundaries is the basis of many neighbor disputes, including encroachments (or perceived encroachments) on one's property. Property Boundaries, Lines and Neighbors FAQ, Top 10 Reasons to Have Your Property Surveyed. Civil Law and Procedure; Title 35. 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. where the writing is silent as to the easements permissible uses, courts have determined that the easement may be used for any purpose to which the easement may reasonably be devoted, provided that no use of the easement may impose a greater burden on the servient estate than that which was established when the easement was first created. The transfer ofeasementsin gross for commercial uses such as telephones, pipelines, transmission lines, and railroads is often permitted. An encroachment occurs when your neighbor intrudes on or over land with some kind of a structure, such as a fence or a deck that veers across the boundary line. A view easement might give your neighbor the right to enjoy a view of the coastline without you blocking the view by building your house up, planting trees, or adding other obstructions. After youve signed the contract, get it signed by a notary. Find out exactly where and what type of easements they are. To find the nearest notary, you should visit the website for the American Society of Notaries. The property rights an easement allows depends on the rules of your specific easement. Including an accurate legal property description is essential when real estate is being transferred or mortgaged. I had no idea prior to. 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. Property You Should Not Include in Your Last Will, Understanding the Legal Description of Property, Using a Lady Bird Deed in Estate Planning, Top 5 Must Dos Before You Write a Living Trust, Establish the rights and responsibilities of shared real property with a land ownership agreement. Lobato, 71 P.3d at 950 (referencing Colorados adverse possession statute in an action to create an easement by adverse possession). 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. s. It's possible, in some cases, to remove an easement from your property. Obtain a survey of the property to see if there are any easements and where they're located. In other words, you have a legal right to use the land. Highways, including parking and traffic on highways. 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. 1992). 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. Co. v. Sandberg, 350 P.3d 924, 93132 (Colo.App. 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. 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. View Statute 76-2,114 Easement; judicial modification or termination. Ever wonder where the exact line of your property begins or ends? 41. If the tree has a Preservation Order on it then you cannot cut/pare any branches. 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. Many lawyers now offer unbundled legal services. 52. Maralex Res., Inc. v. Chamberlain, P.3d 399, 404 (Colo.App. On the other hand, negative easements, also referred to as restrictive covenants,17 prohibit the servient estate owner from using and enjoying his or her property in certain respects.