06/21/2021
The Colorado Supreme Court released an interesting decision today concerning prescriptive easements in the case of Lo Viento Blanco, LLC (“Owner”) v. Woodbridge Condominium Ass’n (“Woodbridge”). A prescriptive easement is an easement upon another's real property acquired by continued use without permission of the owner for 18 years in Colorado. In 1975 the Owner's predecessor in title sold a larger tract of land to Woodbridge that did not include the adjoining disputed parcel. From that point forward, and continuing through at least 2012, Woodbridge used, maintained and improved the disputed parcel. Beginning in 1975 and continuing thereafter, Woodbridge treated the disputed parcel as if it owned the parcel.
In 1991 Woodbridge wrote Owner’s predecessor in title requesting permission to plant trees and shrubs on the disputed parcel. Woodbridge received a response that there was no objection to the planting of the trees or shrubs, but Woodbridge would have to acknowledge that it had no claim to hold title to the disputed parcel. Woodbridge sent no reply. In 1992, Woodbridge sent an offer to Owner’s predecessor in title offering to purchase the disputed parcel for $10,000. Woodbridge received no response to its offer and continued to use and improve the disputed parcel. In 2010, Owner acquired the disputed property and presented Woodbridge with plans for building on the parcel. Woodbridge objected and advised the Owner that it had acquired the property through adverse possession. Woodbridge filed a suit to quiet title to the property seeking ownership to the property via adverse possession or in the alternative a prescriptive easement over the property. Following a trial to the court, the court ruled that Woodbridge had acquired the property by virtue of adverse possession. Owner appealed to the Colorado Court of Appeals which reversed the trial court’s decision but remanded the case back to the trial court to determine whether Woodbridge had acquired a prescriptive easement. The trial court ruled that it was satisfied that Woodbridge had proven the requisite elements to establish a prescriptive easement and awarded a prescriptive easement to Woodbridge. Owner appealed to the Colorado Court of Appeals and in a unanimous decision the prescriptive easement awarded by the trial court was affirmed. Owner appealed to the Colorado Supreme Court.
To obtain title to property by adverse possession, the claimant “must prove that his possession of the disputed parcel was actual, adverse, hostile, under claim of right, exclusive and uninterrupted for the statutory period.” According to Colorado statute the statutory period is 18 years. By acknowledging Owner’s predecessor in title’s ownership of the disputed parcel, as reflected by the request to plant trees and shrubs, and then the subsequent offer to purchase, Woodbridge did not establish its right to adverse possession because it had acknowledged Owner's predecessor’s ownership interest. Acknowledging the owner’s ownership interest interrupted the running of the statutory period. This defeated the requisite hostility and the claim for adverse possession.
In Colorado, “[a]n easement by prescription is established when the prescriptive use is: 1) open or notorious, 2) continued without effective interruption for the prescriptive period, and 3) the
use was either a) adverse or b) pursuant to an attempted, but ineffective grant.” Thus, unlike a claim of title by adverse possession, a claim to a prescriptive easement does not require a showing of “hostility” (i.e., a claim to exclusive ownership). Rather, in the context of prescriptive easements, an adverse use is a use made without the consent of the landowner, or holder of the property interest used, and without other authorization. Adverse uses create causes of action in tort for interference with property rights. The causes of action are usually actions for trespass, nuisance, or waste. Such uses are adverse or hostile to the property owner in the ordinary sense of the words. Stated otherwise, “[t]o be adverse, a use must create a cause of action for interference with an interest in property like trespass, nuisance, or interference with a servitude benefit. To be adverse, the use must be made without authority and without permission of the property owner.” A claimant seeking to establish a prescriptive easement need not show that it asserted exclusive ownership of the property during the prescriptive period. Rather, such a claimant must show that its use was without permission or otherwise unauthorized and that it interfered with the owner’s property interests.
A prescriptive easement claimant that shows that it has possessed the easement for more than the statutory period is entitled to a presumption of adverse use. This presumption can be rebutted, however, if the landowner shows that the claimant’s use was permissive at any time during the statutory period.
In conclusion, the Supreme Court held that under Colorado law, a claimant’s acknowledgment or recognition of the owner’s title during the claimant’s prescriptive period does not interrupt that prescriptive use or defeat the presumption that the use was adverse for purposes of establishing a prescriptive easement.
