REAL ESTATE LAW
BY APRIL D. HENDRICKS
Tis article provides an overview of key principles of Colorado easement law. It discusses various types of easements recognized by Colorado courts and how they may be created, used, and terminated.
An easement is a nonpossessory interest in property owned by another.1 Formally defined, “an easement is a right conferred by grant, prescription or necessity authorizing one to do or maintain something on the land of another, ‘which, although a benefit to the land of the former, may be a burden on the land of the latter.’”2 As a practical matter, the ownership of an easement confers upon the easement holder only the right to use the property burdened by the easement for a specifc purpose; legal title to and the right to possess the land itself remains with the property’s owner.3
Though disputes surrounding the creation, use, and termination of easements are commonly handled by attorneys specializing in real estate transactions and litigation, the basic principles of easement law may arise for a broad spectrum of practitioners and in a variety of contexts, such as water transactions; oil, gas, and mineral transactions; and local government and municipal undertakings. Tis article provides an up-to-date overview4 of the key principles of Colorado easement law, including a discussion of the various types of easements recognized by Colorado courts and how these easements may be created, used, and terminated under Colorado law.
The Language of Easements
Many common terms associated with easements are not routinely encountered in other areas of law. Te following terms and phrases are typically found in cases discussing easements.
Servient Estate versus Dominant Estate
The portion of the property that is burdened by an easement is referred to as the “servient” estate, or the servient tenement, while the property benefited by the easement is referred to as the “dominant” estate, or the dominant tenement.5 Some courts prefer to use the less antiquated terms of burdened and benefited estates.6 Typically, an easement benefits one property while simultaneously burdening an adjacent property. For instance, in the case of a ditch easement, the easement holders may construct a ditch across lands owned by others to convey water to their property. In this scenario, the ditch easement is the benefited estate and the lands through which the ditch passes are the burdened estates.
In the case of reciprocal easements, two or more property owners agree upon an easement that will offer certain benefits and burdens for each affected parcel, thus making each parcel both a dominant and a servient estate.9 Reciprocal easements are commonly used in commercial settings, for example shopping centers or residential complexes with multiple buildings and tenants, to delineate access to and use of shared parking lots and common areas, public roads and walkways, and permissible signage locations. In residential settings, reciprocal easements often involve the use of a shared driveway among two or more adjacent parcels. In any scenario, however, all properties involved are both benefited and burdened by the use and enjoyment of the reciprocal easement.
Appurtenant versus In Gross
An appurtenant easement is intended to benefit a specifc parcel of land, the dominant estate. This type of easement runs with the land to which it is attached, so it passes to successive owners of the dominant estate and the servient estate, irrespective of whether the easement is referenced in the deed.10 Under Colorado law, and in most other jurisdictions, easements are presumed to be appurtenant.11
An easement in gross is not attached to the land itself and, therefore, does not run with the land. Rather, this type of easement grants a personal right to a specifc individual to use another’s property.12 Examples of easements in gross include a landowner’s grant to a specifc individual of the right to hunt or fish on the property, or a grant to a utility company of the right to construct a pipeline or power lines through, across, or under the property. At common law, easements in gross were considered to be nontransferable; however, under Colorado law, easements in gross may either be personal to a specifc individual or freely transferable, depending on the parties’ intent when the easement is created.13
Exclusive versus Nonexclusive
Generally, easements are presumed to be nonexclusive. Tis means that both the easement owner and the servient estate owner may make use of the property burdened by the easement, provided that the servient estate owner does not unreasonably interfere with the easement owner’s use of the easement.14 Where a nonexclusive easement burdens a parcel of land, the rights of the servient and dominant owners must be balanced to ensure the reasonable enjoyment of both estates.15 But where the owner of the servient estate and the easement holder specify that an easement is to be exclusive, the servient estate owner may not access or use any portion of the easement.
Affirmative versus Negative
All easements are either affirmative or negative. Easements typically confer an affirmative right to enter upon, and use a portion of, the servient estate for a specifc purpose. For instance, roads and driveways are often constructed within an affirmative access easement, and pipelines and powerlines may be developed and installed within an affirmative utility easement.
On the other hand, negative easements, also referred to as restrictive covenants,17 prohibit the servient estate owner from using and enjoying his or her property in certain respects. Tis type of easement does not permit a right of entry upon the servient estate, but rather requires the servient estate owner to restrict his or her use of the property for the benefit of another. One common example of a negative easement is a conservation easement donated by a landowner to a land trust or other governmental entity that imposes perpetual restrictions on the property’s development and use, to protect the property’s conservation value.18 Other common types of negative easements include easements for light and air and for unobstructed views. In these instances, the servient tenement owner typically agrees not to build on his or her property in such a manner that would prevent light from entering a neighboring property or that would obstruct a neighboring landowner’s view. As property development and construction activities continue to progress in Colorado, the use of light and view plane easements is likely to increase as well.
Creating an Easement
Under Colorado law, easements may be created in a variety of ways. Most commonly, easements are created and conveyed in writing (an “express easement”), and oral agreements that purport to recognize an easement are invalid under the statute of frauds.19 As a general matter, where an easement is not expressly granted and acknowledged in writing, the claimant of an easement must seek judicial recognition of his or her interest in the property through one of the several theories of implied easements discussed below.
A property owner may expressly grant an easement by deed or other instrument, or, alternatively, the owners of a parcel of land may reserve an easement for themselves when conveying the land to another.20 To determine whether and to what extent an easement has been expressly granted, courts first look to the contents of the deed or instrument to determine the parties’ intent.21
Irrespective of whether the easement is conveyed by grant or reservation, no particular words are necessary to convey an easement in writing. Colorado courts have routinely found that “[w]ords which clearly show the intention to give an easement are adequate to demonstrate its creation, provided the language in the instrument is sufficiently definite and certain in its terms.”22 Generally, vagueness in describing an easement or its location will not invalidate the easement’s existence. The written document must identify with “reasonable certainty” that an easement has been created, along with the dominant and servient estates; however, courts may decline to recognize an easement that has not been identified or defined with sufficient detail.23 For instance, courts have determined that a deed validly conveyed an easement by accurately reciting the size, dimensions, type of use, and location of the easement on the servient tenement, as well as the legal description of the servient property.24 Generally speaking, if the servient estate’s location is described with reasonable certainty, an express easement will not be deemed void for vagueness.25 If the conveyance documents clearly include an easement but do not describe its location with specificity, the easement may still be enforceable by the parties, but in such instances, either an amended or correction deed or a judicial decree will be necessary to determine and fix the easement’s location.
Easements that are not expressed in writing by the parties may arise out of the existence of certain facts implied from the transaction.26 Courts have recognized a number of instances in which an easement may be created through implication, including by necessity, prior use, prescriptive or adverse use, and estoppel.
Easements typically arise by necessity to resolve access issues for landlocked or otherwise inaccessible properties, based on the assumption and public policy consideration that no person intends to render property inaccessible for the purposes for which it was...