Page 24 —
COLORADO REAL ESTATE JOURNAL
— June 1-June 14, 2016
experience
direction
Where are you headed?
How do you gain a competitive advantage
in the crowded real estate industry? We can help. Our CPAs and
advisors share their firmwide knowledge by
offering more than
500 articles, videos, webinars and presentations annually
and
participating in industry associations as speakers, sponsors and
members. We’ll help you
forge ahead with certainty.
500+
Learning OppOrtunities
Colorado Springs
//
719.471.4290
Denver
//
303.861.4545
BKD National Construction & Real Estate Group
Law & Accounting
C
olorado counties often
will approve a devel-
oper’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 ease-
ment (easement by adverse pos-
session) when it passes through
multiple lots? Finally, is there
a point in time when the road
becomes an easement by neces-
sity when it is the only access to
particular lots while traversing
other lots depicted on the plat?
n
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 dedica-
tion 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 with-
out 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 pro-
vides a subdivision plat may
evidence dedication and accep-
tance 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 coor-
dinated 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 gen-
eral plan is
the implied
bene f i c i ary
of all express
and implied
s e r v i t u d e s
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 pro-
posed 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.
n
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 “con-
structive notice.” This means
that even though one does not
have actual notice of a particu-
lar 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.
n
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 purchas-
er 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 divi-
sion, b) necessity existed at the
time of severance and c) neces-
sity for the easement “must be
great.” In essence, Colorado law
allows use of adjoining proper-
ty to access one’s own property
when necessary.
n
Easement by prescription.
Easement by prescription is syn-
onymous with adverse posses-
sion. This means that an ease-
ment arises at law if the condi-
tions are met. A party claiming
a prescriptive easement must
show open, notorious, continu-
ous utilization without inter-
ruption for 18 years. Continuous
does not mean utilization/pos-
session 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 ten-
ants 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.
s
Craig Fleishman
Managing director,
Fleishman & Shapiro
PC, Denver
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.
370 17th Street, Suite 4800 | Denver, Colorado 80202
303.825.0800
James L. Kurtz-Phelan - Real Estate Practice Chair
Real
Estate
Attorneys
with
Rea l
Experience
Our national real estate practice
is focused on the evolving
needs of clients.
We advise on current positions,
opportunities, and complex
transactions in:
• Acquisition
• Development
• Financing
• Leasing
Atlanta | Baltimore | Bethesda | Denver | Las Vegas | Los Angeles | New Jersey | Philadelphia
Phoenix | Salt Lake City | San Diego | Washington, DC | Wilmington
For more information, please call
Beverly Quail at 303.292.2400
