Chapter 2 - § 2.1 • PROPERTY
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§ 2.1.1—"Property" as the Thing Owned
"Property" means both real and personal property.2 The right to acquire, possess, and protect property is an inalienable right recognized by the Colorado Constitution.3
The Colorado Marital Agreement Act4 provides: "'Property' means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings."5
In the broadest sense, "property" means "a thing owned," and is therefore applicable to whatever is the subject of legal ownership.6 The term "property" includes a multiplicity of interests and is commonly used to denote everything that is the subject of ownership, whether tangible or intangible, as well as those rights and interests that have value to the owner.7 Property is divisible into different species, including physical things, such as lands, goods, and money, and intangible things, such as franchises, patent rights, copyrights, trademarks, business goodwill, and rights of action. In short, "property" embraces everything that may belong to a person and in the ownership of which he or she has a right to be protected by law;8 everything that has an exchangeable value is "property."9 Electricity made by artificial means is a product of manufacture, and is personal property.10 Trash is property, the hauling of which is subject to regulation by the Public Utilities Commission.11
The Colorado Uniform Partnership Act defines "property" as "all property, real, personal, or mixed, tangible or intangible, or any interest therein."12
As used in the Colorado Limited Partnership Association Act, "property" includes "property wherever located, tangible personal property, intangible personal property, including interests in the association or any other entity, and real property and any legal or equitable interest in property."13
Tangible property is that which is capable of being handled, touched, or physically possessed.14 A railroad right of way granted by the Act of March 3, 187515 is corporeal property.16
The concept of property encompasses those enforceable contractual rights that traditionally have been recognized as choses in action.17 A chose in action is personal property.18 The owner of a chose in action may deal with it as one deals with his or her own property.19 A life insurance policy, being a chose in action, is intangible property. The person having the incidents of ownership may destroy the policy by failing to perform conditions essential to its maintenance (as by not paying the premiums), borrow against the reserves, or change the beneficiary.20 An employee's vested but not matured pension right is not a mere expectancy, but rather an enforceable contract right, commonly referred to as a chose in action, and thus a form of property.21 Investments, anticipated profits, and financial interests are intangible property.22 A right of indemnity under a liability insurance policy is personal property sufficient to support the appointment of a personal representative for a nonresident decedent.23 Similarly, the right of indemnity is subject to attachment under C.R.C.P. 102 for the purpose of quasi in rem jurisdiction.24 A legal right to damages for injury is property.25 The right of a utility to serve customers under a certificate of public convenience and necessity is property.26 A water right is a property right;27 it is not merely a revocable license.28 But there is no property right in unappropriated water.29
A license is not a property right.30 There is no property right in a dead body in a commercial sense, since a dead body cannot be bartered or sold.31 There is no property right in a nuisance.32 Things that are capable of no use for lawful purposes are not the subject of property.33 Nevertheless, the unlawful taking of such things may be larceny.34
§ 2.1.2—"Property" as Rights in the Thing Owned
In another sense, "property" is not the thing itself but the right a person has in the thing,35 that is, the exclusive right to possess, use, enjoy, and dispose of a thing.36 The right of acquiring, possessing, and protecting property is an inalienable right recognized by the Colorado Constitution.37 The constitutional rights of the owner of property include the right to exercise dominion and control over the property38 and the right to exclude others.39
The thing need not necessarily have a tangible or physical existence.40 It may be an easement or anything else that can become the subject of private ownership. For example, the proprietor of a ditch has a property ownership, both in the ditch and in the right of way for the ditch,41 and the right of the owner of a water right to change the point of diversion is a property right.42
An incorporeal hereditament is a right issuing out of a thing corporeal, whether real or personal, or concerning or annexed to, or exercisable within it.43 It is anything that is the subject of property that is inheritable, and not tangible or visible. It is a creature of the mind, and can exist only in contemplation. It is not the land or thing corporeal, but is something merely collateral thereto.44 The right to have a certain quantity of water flow through a ditch is an incorporeal hereditament.45 Incorporeal hereditaments, particularly easements, have always been considered property.46 The right to the use and possession and the income of real property are incidents of the ownership of that property.47 But title to property cannot be acquired by theft, conspiracy, or fraud.48
Free alienation of property is one of the essential attributes of common-law property ownership.49 This is true even though the transfer of the property may deprive a spouse or an heir of an inheritance.50
A landowner is entitled to landowner preference for licenses permitting the hunting of deer, elk, or pronghorn when certain qualifications are met.51
Property, in the sense of rights in the thing owned, is not absolute. For example, condemnation for a public purpose is a limitation upon the exercise of property rights.52 Similarly, the right of an owner to exclude others from his or her property may be made subordinate to the right of union organization.53 A landowner has the right, when staying within the boundaries of his or her property, to do such things as he or she thinks are necessary for the protection of his or her property, but in so doing he or she cannot adopt a method that would damage or create a new injury to others.54
§ 2.1.3—"Property" as a Basis for Due Process
To establish a right to due process, one must demonstrate a property or liberty interest.55 Not every deprivation triggers the protections of due process; due process applies only to the deprivation of significant property interests.56 A business is a property right entitling its owner to protection against government action the effect of which would be to deprive the owner of his or her property without due process of law.57 To have a property interest in a benefit, a person must have more than an abstract need or desire for it. He or she must, instead, have a legitimate claim of entitlement to it.58 In the municipal land use context, the entitlement analysis focuses on whether there is discretion in the governing body to deny a zoning or other application. A property interest exists if discretion is limited by the procedures in question — that is, whether the procedures, if followed, require a particular outcome. But where the governing body retains discretion and the outcome of the proceeding is not determined by the particular procedure at issue, no property interest is implicated.59 A month-to-month tenant's unilateral expectation of continued possession is not a property interest protected by due process.60
Property interests are not created by the Constitution; rather, their dimensions are defined by existing rules or understandings that stem from an independent source, such as state laws.61 But a person has no property in any rule of the common law,62 or in a procedural rule.63 Sources of property interests include express or implied contracts. The existence of a property interest in employment is a question of law.64
§ 2.1.4—"Owner"; "Ownership"
An owner is one who has dominion over that which is subject to ownership. The owner has the right to make such use of it, consistent with the rights of others, as he or she may see fit. Ownership may extend to an entire thing, or may be limited to an interest in it, but whatever is the subject of ownership is held by the owner for his or her own individual benefit.65 The term "owner" includes any person having a claim or interest in real property, even if less than an absolute fee.66 Thus, a purchaser in possession under a purchase contract is the "unconditional sole owner, in fee simple" for purposes of an insurance policy.67 But the holder of a tax sale certificate has a lien only, and is not an owner of the property sold for taxes.68
An optionee is an owner for the purposes of the mechanic's lien statute,69 as is a lessee70 and a purchaser at a foreclosure sale,71 but a person holding a vendor's lien is not an owner for such purposes.72
For the purposes of the recreational landowner liability statute, the term "owner" includes, but is not limited to, the possessor of a fee interest, a tenant, lessee, occupant, the possessor of any other interest in land, or any person having a right to grant permission to use the land, or any public entity as defined in the "Colorado Governmental Immunity Act," article 10 of title 24, C.R.S., which has an interest in land.73 For the purposes of the statute dealing with roofing services on residential property, "property owner" means the owner of residential property or the owner's legal representative.74
The element of "ownership" under statutes such as those relating to burglary, theft, and criminal mischief may be laid either in the true owner or the person in possession.75 One purpose of...
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