Let’s talk about easements.
Easements seem to come up more and more frequently, but especially so after an easement-related dispute arises.
We have referenced the term in select prior posts of our Denver real estate law firm. We noted in a June 8 entry at O’Brien Legal Services, LLC, for example, that “not all property titles are free and clear,” owing to existing easements. Realty owners sometimes find that out only belatedly. The implications can be material.
No reader should feel angst over not knowing the precise ins-and-outs of easements. In fact, most attorneys not intimately involved with real estate transactions and disputes lack such knowledge, too. Based on a cursory review of online discussions of easements, it is apparent that miscomprehension is widespread. And that, stresses the primer, often spawns “legal problems that can arise in their creation, interpretation and implementation.”
Perhaps the first point to make regarding easements in Colorado and elsewhere is about their fundamentally reciprocal nature. An easement is a right that a nonpossessor of property lawfully has in land owned by another party. Without getting too deep (unlike the case for first-year law students, who often struggle with pages of easement essentials), the property owner’s interest is considered “burdened” by the right of easement holder, which makes the owner’s property a “servient estate.” The party who derives benefit from the burdened property has, conversely, a “dominant estate.”
Here’s one quick example of a rather simple easement. A property owner owns two houses on a single parcel. In Denver, we see this where a garage detached from the main house is converted into a coach house. Access to the coach house in the rear is possible only via the main house’s driveway. If the owner subdivides and sells the coach house to another party, the new coach house owner will likely have an access easement over and across the main-house property, whether by express grant of easement, i.e., in writing, or, less frequently, by an easement by implication or by necessity, typically validated through a court decree.
There are, of course, other and more complex ways an easement can arise, even if the parties were not intending to create one. However, buyers and sellers should give some thought to easements and should consult a professional if there is any question about an easement.
Because easements are prevalent in real estate transactions in Colorado and nationally, we would like to extend our focus on them just a bit in the firm’s next blog post. This overview aptly notes that their creation, interpretation and implementation often entails “a unique set of considerations.” We’ll spotlight those in our next entry.