Posted by on March 15, 2017

If you own land in Colorado, real estate easements are a fact of life.

What Does Easement Mean in Real Estate?

Essentially, a real estate easement is an external property right which burdens the property owned by another. In other words, an easement grants the right of use of some portion of a property to someone who does not own that property. An easement is usually included in the title of the property.

An easement is a nonpossessory interest in land that gives the holder of the easement the right to use, or restrict the use of, land subject to the easement.

There are several types of easements in real estate, but they all serve the same purpose: Granting rights of use of your property to someone who does not own the property. Generally easements apply to public utilities and/or public projects. Due to the complexity of easements in real estate, the Colorado Bar Association publishes updates covering the numerous court decisions affecting this area of real estate law.

Here are the common types of easements in real estate:

  • Express Easements  This type of easement comes about by written agreement. Generally, express easements come 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. Express easements, are permanent unless the agreement stipulates a set period of time. An express easement must be in writing, and detail exactly what parts of the property the easement applies to, and what use or rights are being granted to the other party. It is a very good idea to have a Colorado real estate attorney look over any express easement document that you are dealing with.
  •  Implied Easements  This type of easement generally is implied from existing use. Generally, implied easements come about when there is a transaction, typically the sale of property, which encompass things that are implied by use, or when a particular use of the property  was apparent at the time of the transaction.

The forms of Implied Easements can be:

  • Easement by way of necessity  This type of easement is implied by law under certain circumstances. Such easements are most commonly implied in favor of a grantee that has no access to their land except over the land of another; The law will imply an easement over another’s land in such a circumstances. For example, an easement by necessity may be implied by law where an owner of land later splits the land so that one of the resulting parcels is landlocked, and access to the separated parcel can only be accomplished by crossing over the other parcel. Under Colorado law, it is assumed that the seller intended to grant reasonable access (an easement) for the use of the property that was sold, provided that the need for the easement is present at the time of the transaction. Public policy favors a way to access each separate parcel of land.
  • Easement by Implication from Prior Use.  This type of easement is implied from prior use. For example, when one person or party possessed 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 spiting or  “severing” one parcel from the other, the severed property could still have an easement upon the other because of prior use.  This type of easement requires 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 other property was intended to be permanent. The easement must be reasonably necessary and prior use must be apparent.
  • Prescriptive Easement A Prescriptive Easement can be acquired by the adverse use of property for the requisite period of time, usually after a period of 18 years.  In Colorado a prescriptive easement applies when someone has made use of access to a property continuously, without the owner’s consent, with no attempt of concealment of the use or access, for a period of 18 years. Most commonly, this is applied to thoroughfares crossing over someone’s property. The law requires that the use of an easement accessing a property must have been “open and notorious,” constant, without any co-usage of the property by the actual owner. Essentially, this means that the property owner knew or should have known it was going on throughout the 18-year period and made no protest to the “adverse” use over the property.

Checklist for Closing Day

Once an easement is established, it must be noted on the title of the property before any sale of that property is made, and anyone purchasing property is well advised to take a close look at how the property is being used to determine if any easements are applicable to the property under consideration. In the end, easements are a “good news/bad news” situation. As a property owner, you WANT the protection of easements on adjoining land to protect your investment. But you also need to consider that any easement on property you purchase grants rights of easement to others. This may, or may not, ever become an issue for you. It’s best to consider it carefully before rushing into any property deal.

Likewise, if you already own property, you should consider carefully easements that already exist, as well as any easement that might be established. It’s fine to allow people to cross your land to get access to whatever. But be aware that if it goes on long enough, it may become a permanent feature of the property, whether you like that idea later on or not.

Besides real estate easements, you may be interested in knowing what are common types of deeds used in Colorado and download a sample set.