Easement Basics
Easements are of two kinds. There are easements by prescription and there are written easements.
An easement by prescription is when someone's been using somebody else's property right under their nose for some long period of time. In Colorado, that's 18 years.
For example, if you've been using the path on your neighbor's property to get to the lake for at least 18 years, then you have established an easement by prescription.
There's a joke that my law school classmates used to tell, and it goes like this. “Why did the chicken cross the road? To establish an easement by prescription.” Alas, a lawyer’s sense of humor may not be for everyone.
The other kind of easement is a written easement. Easements must be in writing, because as a general rule, under what’s called the “Statute of Frauds,” anything affecting property has to be in writing.
A written easement ideally details the location of the easement is, who can use it, and for how long.
The range of written easements is wide.
Sometimes you have big, long documents that explain the easements and who can use it in 30 or 40 pages, and have pages of exhibits, or you might just have little a plat note that says “access easement.” With something that simple, like a plat note that just says “access easement,” it's a little more vague in terms of who can use it, whether it can be expanded, and those type of questions.
The written easement should be recorded against the property. If it's not, that's where title company comes in.
The title company issues insurance will cover damages arising from easements are not recorded. That’s why it’s important to get title insurance as a property owner, because it’s possible there are easements on your property that your did not know about when you bought it.
DISCLAIMER: This article does not constitute legal advice.
Please contact your attorney to discuss how to create and enforce easements.
Diane Wolfson is the managing partner of Sphere Law Firm. She specializes in real estate, business and commercial litigation.