Mrs Cad talked to an attorney and I hope she was not charged because the information was worthless. We own a piece of property in the mountains. It has an easement from a private road that you need to 4x4 over to get to where you would build. However the other side of the property is 90 yards from a county road and ou are right there at the build site. We are trying to get a prescriptive easement to the county road but the attorney said that is the last resort and instead
Sell the property as is since there is that other easement. No! I’ve tried and no one wants to use that easement. The want the less-than-a-football-field length of access along flat ground t a maintained county road.
Write a Letter of Demand. But we have no right to the easement we want. What exactly are our grounds for a demand? Does that make any sense?
No mention of if we should offer to buy that strip before or after we file for the easment. I know that if the owner uses certain magic words in their communications to us we lose the right to the easement. So do we get the easement first then ask to buy so the owner gets something for the property usage they just lost?
Not sure where you are located, but anything I’ve ever worked on has required easement to be granted by the property owner; nobody else has the right to grant you access over somebody else’s property (excepting eminent domain, of course).
Why do you think you have a right to an easement ? Your property isn’t currently landlocked even if the existing easement is not what you would prefer to use. In most states you would have to pay the current landowner for the right to cross their property if you want to do that, and that would be a negotiation and not any kind of demand, because they could just tell you to go pound sand if they want to.
- 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.
These are the reason we contacted the attorney.
Can we get a prescriptive easement?
How do we make it official?
Maybe that is done through a letter of demand but she made no attempt to explain how, instead told us to get an attorney in that county. I mean yeah, I get why we want a local attorney in that area but she didn’t even explain the basics to us.
A prescriptive easement essentially means “there’s already a road/driveway there that I have been using for 18 years already”. Is there already a driveway that you have been using for >18 years? If not, that doesn’t apply at all. Edit to add, that means crossing the property you want an easement for, NOT the county road itself.
Yeah, that seems to be the critical piece of information.
Not a lawyer, but I can see that “Letter of Demand” might be a term of art in that jurisdiction meaning that it is actually a request. But I agree that the easement would have to come from the owner of the property you want to cross. I’m sorry if you got a bum lawyer, did your wife ask clarifying questions? Maybe the county office can help you understand what you need to do. If there’s a 311 information line for that county, try them to see at least what department you need to talk to.
Why does there need to be a driveway? Not just a strip of drivable land from here to there.
Why didn’t the attorney ask that as their first question if it is a requirement?
If there’s no driveway then have you been continuously driving across that piece of property for 18 years ? And even if you have without a driveway they could argue that it wasn’t “open and notorious” - a reasonable person would have to be able to be aware of it for the whole time. Having a driveway there just makes it clear that yes they would have been aware.
But HOW do we get that from the owner? I assume he doesn’t want to just give us the easement. Is that the letter of demand?
My wife has absolutely no clue how easements work, but since it’s her property and her attorney through her referral service, the attorney only wanted to talk to her.
Your first letter should be an offer to BUY it, not any kind of demand, if you want any chance of actually getting it.
Whether there is a driveway or not , have you been using this piece of land to get to the county road for 18 years without the actual owner also using the property? And was it used in such a way that the owner should have known that you were using it ? If you are driving right past the owner’s house every time you arrive at or leave your house, it might be hard for the owner to say he didn’t know. Different story if it’s not going past the owners house and you only drive across that land for a couple of weeks a year.
Good point except this mountain land so rarely used area. We assumed that open and notorious meant not trying to hide and anyone driving that county road would have seen us. I have pictures showing us parked there on multiple occasions. That was one of the questions I wanted Mrs Cad to ask - are those pictures worth anything?
Yes!
Yes except the owners were all absentee owners for this raw land. As I said above, we made no effort to hide our usage but people driving by was a rare occurrence and never the owner as far as I know.
Personally I’d just keep using it. If the landowner minds you’ll find out soon enough. Then the negotiations can happen.
We own an easement like this. As soon as we moved here the county came and “improved” it. It’s unmaintained by them though. Now it’s used by us and hunters and billet haulers. From one county to the next. We mostly have no problem with this.
The old road was there many moons so I guess we had no choice.
Don’t push the homeowners into caring. Demanding easement seems a bit aggressive.
" Open and notorious" means more than just not hiding that you are using the property. It means acting as if it was already your property - and if they were absentee owners, I don’t see how they should have known you were driving across this strip of their land.
This is kind of what I’m wondering. Conversation goes like this:
Potential buyers: So how do we get onto the property?
You: Oh, we just drive through that flat area there. It belongs to someone else, but we’ve never seen them on the property, and they’ve never said anything about it.
Buyer: But you don’t have an easement?
You: Honestly, nope–but it’s not hurting them, and they’re never here. On the very small chance that they object, we’re happy to sign an affadavit saying we’ve been using it this way for X years, and we have some pictures of using it. You can probably get a prescriptive easement.
There may be buyers who are put off by that ambiguity, but that’s what you’ve got. It doesn’t sound like you have a rock-solid case to demand an easement, and making the demand is risking a fight that you won’t win.
The other possibility might be to say, “Hey, landowner: we’ve been driving through your property X times a year over the past Y years to get onto our property, as it’s the only realistic access to our property. But we’re selling the property soon, and we’d like to negotiate a formal easement with you before the sale. Would you be willing to sign over that easement for $ZZZ dollars?”
I am the farthest thing you can imagine from a lawyer (well, that’s not true, I’m not a deep-sea sponge), so take this as just random wonderings.
My thought as well.
Who owns the property? Have you asked them to sell you an easement?
Are you saying you have been repeatedly traveling over that portion of land repeatedly over the past 18 years? How often, and with what purposes?
Property law class was a long time ago for me. I vaguely recall there being presumptions and caselaw concerning what constitutes open, notorious, adverse use, and what expectations are for an owner to inspect remote property.
If you have just driven in and out a couple of times, I would presume that would not be considered open and notorious (or continuous/constant per your quoted language.) There is no requirement that the owner be there at the exact moment you trespass on their property, or post cameras to detect momentary trespass.
IDK about that. The whole point of a prescriptive easement, like adverse possession, is that you have already exercised such control of or use over a property as to make it yours by operation of law, irrespective of the desires of the record title holder. Offering to buy it (as opposed to offering to settle) would seem to be an admission that one does not consider themselves the rightful owner or user.
I suppose, maybe, the attorney’s theory with the demand letter is to see if maybe the current property owner will agree that there is already a prescriptive easement, which they might in turn recognize in writing. If that fails, then presumably there would need to be a suit to quiet title or some such similar action.
But I’m not a real estate attorney, and this is merely general information, not particularized legal advice, and SC should seek clarification from his attorney if he wants particularized legal advice.
Does that mean there have been multiple owners? I haven’t found anything but I’d be really surprised if the 18 years didn’t require a single owner - otherwise you could get an easement on the property I’ve only owned for 6 months if you were driving over it for 17 and a half years under previous owners.
You might want to be careful about talking to the owners - if you don’t already meet the requirements, they can keep you from ever meeting the requirements by giving you written permission. Which can later be revoked either by them or a subsequent owner - and if I was that subsequent owner, I’d put up a fence.