Colorado Real Estate Journal - June 1, 2016
Colorado counties often will approve a developer’s proposed plat that depicts a “proposed road.” After purchasers of the various lots depicted on the plat begin utilizing an improved dirt road as depicted on the plat, when does the same become a public road? Additionally, is there a point in time when the road becomes a prescriptive easement (easement by adverse possession) when it passes through multiple lots? Finally, is there a point in time when the road becomes an easement by necessity when it is the only access to particular lots while traversing other lots depicted on the plat? Public road. Colorado Revised Statutes, § 43-2-201(1) (a), provides, in part, as follows: The following are declared to be public highways: “(a) All roads over private lands dedicated to the public use by deed to that effect, filed with the county clerk and recorder of the county in which such roads are situate, when such dedication has been accepted by the board of county commissioners. A certificate of the county clerk and recorder with whom such deed is filed, showing the date of the dedication and the lands so dedicated, shall be filed with the county assessor of the county in which such roads are situate … (c) All roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years.” Therefore, a “highway” may indeed be nothing less than a footpath. Colorado law provides a subdivision plat may evidence dedication and acceptance of a road as being public in nature. Colorado law holds that one of the purposes of requiring subdivisional land before development is to assure that the internal street plan for the particular area will be coordinated with an overall street plan for the community and will allow the free flow of traffic between various subdivisions. In addition, a road need not be maintained by a county for it to be a public road. An easement may be implied from a general plan. General law holds that each lot included within a general plan is the implied beneficiary of all express and implied servitudes imposed to carry out the general plan. In other words, one should look closely at the deed by which one obtains title to a platted lot. If the deed conveys the lot except for liens, encumbrances, plats, etc., of record, a road or proposed road depicted on a plat running through a purchaser’s lot will not be conveyed to the purchaser. This will permit other lot owners to traverse the purchased lot with impunity. Easements. Easements may be express easements, which are created by contract or conveyance, or by implication based on a plat map. The plat is, in fact, an express easement to the extent it depicts a road or a proposed road thereon. This is further supported by a deed restriction as described. There is a legal phrase of “constructive notice.” This means that even though one does not have actual notice of a particular item or event, if something is of public record, the public is deemed to have notice of the existence of the item and is therefore bound by such notice. A recorded plat is constructive notice of what is on it because it is public. Easement by necessity. An easement may be created by law when the land conveyed is entirely surrounded by the land of the grantor (seller or transferor) or by the land of the grantor and other parties. One is entitled to ingress and egress over property retained by a grantor of title to a purchaser so the purchaser can access the property acquired. There are three requirements to have such an easement. They are: a) the entire tract was owned by a single grantor prior to division, b) necessity existed at the time of severance and c) necessity for the easement “must be great.” In essence, Colorado law allows use of adjoining property to access one’s own property when necessary. Easement by prescription is synonymous with adverse possession. This means that an easement arises at law if the conditions are met. A party claiming a prescriptive easement must show open, notorious, continuous utilization without interruption for 18 years. Easement by prescription. Easement by prescription is synonymous with adverse possession. This means that an easement arises at law if the conditions are met. A party claiming a prescriptive easement must show open, notorious, continuous utilization without interruption for 18 years. Continuous does not mean utilization/possession of the easement every minute. Rather, a prescriptive easement arises by use over the prescribed period whenever desired. A claim of prescriptive easement is not restricted to the owner of a claimed easement but may be also claimed by tenants and visitors. A purchaser should closely review and investigate plats of record, which include a lot or home to be purchased. There may be restrictions on said plat, which could impair full utilization of the property to be acquired. Also restrictions on the deed by which title is to be acquired should also be reviewed with an attorney or a title insurance company to determine which limitations, restrictions or defects may exist impacting on marketability, merchantability and validity of the transference.