Colorado Boundary Line Disputes Lawyer-Colorado Boundary Line Disputes Attorney
Most people have lovely neighbors. As such, there are no qualms about their respective property lines. Some people, however, aren’t so lucky and happen to live next to someone who is litigious and wants to squabble about property lines. When a fence line, driveway, gate, or otherwise is not actually on the property line and your neighbor wants to fight about it, you may need the assistance of a skilled attorney.
Ideally, you and your neighbor can resolve it amicably, but if a resolution is impossible, Aaron Barrick and Michael Hupf at Folkestad Fazekas Barrick Patoile, P.C. are experienced and well-equipped litigation lawyers to assist with these Colorado boundary line disputes. There are several legal remedies available to resolve these types of issues about Colorado boundary lines, including the legal claims of adverse possession, an easement, and quiet title.
Adverse Possession
Adverse possession is a legal concept where an individual can gain legal title to their neighbor’s titled land through continuous adverse usage. In Colorado, courts look to see if an individual’s usage of the disputed land reflects the usage of an average landowner for a period of eighteen consecutive years. C.R.S. § 38-41-101, et seq. There are several factors that courts look for to make this determination.
The adverse possession must be “actual, adverse, hostile, under claim of right, exclusive and uninterrupted for the statutory period [18 years].” Smith v. Hayden, 772 P.2d 47, 52 (Colo.1989). “The very essence of adverse possession is that the possession must be hostile, not only against the true owner, but against the world as well.” Lovejoy v. School District No. 46, 269 P.2d 1067, 1069 (Colo. 1954).
The easiest way to establish adverse, hostile and exclusive possession of disputed land is by way of a fence line. The mere existence of a fence does not establish adverse possession, but when both property owners believe that a fence has marked the true boundary of the property for eighteen years, there is a presumption that the holding is adverse. Bd. of County Comm’rs v. Ritchey, 888 P.2d 298, 304 (Colo. App. 1994).
A successful adverse possession claim results in the transfer of title to disputed property from the original owner to the adverse possessor. This results in new boundary lines between you and your neighbor, which should be surveyed and recorded with the county.
Easement
An easement is a legally protected property right that allows individuals to use land that is not their land. Think of it as a “right of use”. There are many different types of easements that vary in the way the land is used and the reasons for the usage. Most easements are created by landowners habitually crossing over a piece of land that belongs to their neighbor. The more often a landowner crosses the land or the more necessary it is for them to cross the land, the more likely an easement can be established. We discuss three types of easements below and how an easement can be terminated if you are concerned that your neighbor is attempting to establish an easement.
- Express Easement
An express easement is expressly granted and agreed to between two property owners and should be written and recorded. The document conveying this type of easement typically describes the purposes for which the easement may be used, any uses that are not permitted within the easement area and the responsibility for the maintenance of the easement.
In such cases, the scope and extent of an expressly created easement are limited to the description provided within the conveyance. As an example, someone may grant an express easement that permits their neighbor to drive across their land to access the neighbor’s land, but may also expressly state in the easement that the neighbor is not permitted to erect any improvements upon the easement.
- Implied Easement
An implied easement is not documented between the two parties but still gives one party the right to use the land as it was previously used. One type of implied easement is an easement by necessity. The scope and type of uses permitted for an easement implied by necessity vary based on the necessity that gave rise to the easement. Wagner v. Fairlamb, 379 P.2d 165, 169 (Colo. 1963). A standard easement by necessity is when crossing one person’s land is necessary to access your land, often called a “land-locked parcel.” Unlike other types of implied easements, easements by necessity exist only as long as the necessity continues. Because an easement by necessity can be implied only to remedy the “practical inability” to access a parcel of land, if the need for the easement is eliminated by changed circumstances, such as construction of a road or other means of access, the easement will terminate.
Another example of implied easement arises based on prior use of the land. This can happen when one person or party possesses title to separate parcels of land under single ownership and then sells one parcel to another party. After splitting or “severing” one parcel from the other, the severed property could still have an easement upon the other because of prior use. An example of this would be two parcels of land owned by one individual, one parcel with a house, and the other parcel with a lake. The previous owner may have travelled from the parcel with the house onto the parcel with the lake for recreational fishing. If the two parcels are sold to new owners, the parcel with the house may have an implied easement to continue using the lake parcel for recreational fishing.
C. Prescriptive Easement
Finally, a prescriptive easement is a legal right to use someone else’s property without their permission. It’s a type of adverse possession that occurs when someone uses another person’s property in a way that’s open, continuous, and in opposition to the owner’s rights. Prescriptive easements only provide an ability for the user to continue using that land for the same previous purpose. Thus, if you have obtained a prescriptive easement for agricultural use, you cannot use that easement land for recreational uses. Hayes v. City of Loveland, 651 P.2d 466, 468 (Colo. App. 1982)
Implied easement and prescriptive easement cases are very fact intensive and obtaining the factual history of the two pieces of land – typically obtained from the prior owner(s) – is critical to understanding the merits of an implied easement claim.
- Termination
Easements can also be terminated so it is important to analyze how you can preserve your easement rights, or to explore how you can terminate a neighbor’s easement rights. One way an easement can be terminated is through abandonment. Easements cannot be lost through mere non-use. The party asserting that the easement has been abandoned must demonstrate that the easement holder took affirmative acts to abandon the easement. Claims of abandonment are difficult to prove because courts require that any abandonment claim is established by “clear, unequivocal, and decisive evidence.” Clinger v. Hartshorn, 89 P.3d 462, 468 (Colo. App. 2003).
An easement may also be terminated through adverse possession. Since adverse possession applies to “any right or interest of or to real property,” an easement can be negated if there is “actual, adverse, hostile, under claim of right, exclusive and uninterrupted” possession of the easement for 18 years. Matoush v. Lovingood, 177 P.3d 1262, 1271 (Colo. 2008).
Quiet Title
Quiet title actions are legal proceedings where a landowner seeks legal protection over their right to possess or use land. Quiet title actions are common when a landowner’s neighbor is using their land against their will and when a land survey reveals that a property line is different than the landowner and their neighbor previously thought. Quiet title actions are also common when there are discrepancies in boundaries due to conflicting surveys or land plats. Survey techniques have improved over the years with new technology and GPS tracking making the location of boundaries based on metes and bounds legal descriptions more exact.
Quiet title actions are governed by the Colorado Rules of Civil Procedure. C.R.C.P. 105(a) provides:
An action may be brought for the purpose of obtaining a complete adjudication of the rights of all parties thereto, with respect to any real property and for damages, if any, for the withholding of possession. The court in its decree shall grant full and adequate relief so as to completely determine the controversy and enforce the rights of the parties. The court may at any time after the entry of the decree make such additional orders as may be required in aid of such decree.
The statute requires joining all parties with an interest to the land into any litigation, including any mortgage company and the public trustee of the applicable county. Sometimes a quiet title action is based on adverse possession or a claim of easement as described above. Other times a quiet title action is based on a discrepancy or defect in the real property records for the previous conveyances of that land. Quiet title actions also arise when there are disputes about subgrade mineral rights or conflicts with water rights.
Like adverse possession claims, quiet title actions result in a transfer of title with the prevailing party becoming the record owner of the land in question. This ownership should be recorded in the real property records.
Conclusion
This article is intended to provide an overview of typical claims and issues that arise when neighbors fight over their respective land rights. If you find yourself with an adversarial neighbor, or a discrepancy in your marketable title to land, consulting with an experienced attorney can give you peace of mind and protect your legal rights. Call us at (303) 688-3045 today.
