Introducing Mark Cohen who specializes in easement disputes in Adams County, Arapahoe County, Boulder County, Clear Creek County, Gilpin County, Jefferson County, Denver County, Summit County, and Grand County. Because of his expertise in agricultural law he has also represented clients in easement disputes involving properties on Colorado’s eastern plains.
Mark’s expertise is well-known. In 2019, he gave a presentation to the Colorado Bar Association on Mountain Real Estate Issues. In 2021, he presented a continuing legal education webinar on easement law for Half Moon Education. In 2022, he presented Easement Law for Surveyors at the 12th Annual Rocky Mountain Surveyors Summit.
Those who own property in a platted subdivision can often access their parcel from a public road. But for those who cannot, an easement may be the only way to obtain legal access to their property. Legal access is important because trespass is a crime and because a county or municipality will not issue a building permit if the owner does not have “legal access.”
Colorado defines an easement as “an interest in property which, though distinct from an ownership interest in the land itself, nevertheless confers on the holder an enforceable right to use the property of another for a specific purpose.” Wright v. Horse Creek Ranches, 697 P.2d 384, 387-388 (Colo. 1985).
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The property burdened by the easement is customarily known as the “servient estate,” while the property benefited by the easement is called the “dominant estate.” Bijou Irrig. Dist. v. Empire Club, 804 P.2d 175, 183 (Colo. 1991).
The owner of the servient estate enjoys all the rights and benefits of proprietorship consistent with the burden of the easement; while the rights of the owner of the dominant estate are limited to those connected with use of the easement. Id. An easement in gross does not have a dominant estate, only a servient estate. Sinclair Transportation Co. v. Sandberg, 350 P.3d 924 (Colo. App. 2014).
An easement may be express or implied. An express easement is created by grant or reservation in a deed or other document. Colorado also recognizes various implied easements, which I discuss more fully below.
An easement may be appurtenant or in gross. An easement appurtenant runs with the land and belongs to the owner by virtue of his or her ownership of the land the easement benefits. An easement in gross does not belong to an individual by virtue of her ownership of land, but rather is a personal right to use another's property. In Colorado, easements are presumed to be appurtenant. Lewitz v Porath Family Trust, 36 P.3d at 120 (Colo. App. 2001).
An easement may be exclusive or non-exclusive. Unless the grant conveying an easement specifically characterizes the easement as “exclusive,” the grantor of the easement retains the right to use the property in common with the grantee. Barnard v. Gaumer, 146 Colo. 409, 361 P.2d 778 (1961); Bergen Ditch & Reservoir Co. v. Barnes, 683 P.2d 365 (Colo.App.1984).
If the document creating the easement does not specify a purpose, it may allow for unlimited reasonable use. Maasen v. Shaw, 133 SW.3d 514 (Mo. App. 2004).
Some of the most common forms of implied easements are easements by necessity, easements implied by pre-existing use, prescriptive easements, easements by estoppel, and easements under R.S. 2477.
One type of implied easement is an easement by necessity. An implied way of necessity arises when the owner of a parcel of land conveys and grants part thereof to another, which leaves the remainder of the land without ingress or egress, except over the part conveyed. There are three requirements.
The first requires that the original ownership of the entire tract be held by a single grantor prior to a division thereof. The second requires that the necessity existed at the time of the severance. The third requirement is that the necessity for the particular right-of-way be great. Wagner v. Fairlamb, 379 P.2d 165 (Colo. 1963).
Another type of implied easement is an easement implied by pre-existing use. Four requirements must be met to establish an implied easement by pre-existing use: