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Concerning real estate law, private property rights, and related matters with a focus on Colorado

Does “Intent” Matter for Prescriptive Easements Under Colorado Law?


This post builds on a prior post about basic Colorado easement law here, and gets into a specific kind of easement – the “prescriptive easement” or “easement by prescription.”

An easement by “prescription” is not the subject of a written document. It arises when someone continuously comes and goes through another person’s property without permission for a long time – 18 years to be exact. Prescriptive easements usually arise among neighboring property owners. If your neighbor crosses your property to get to their property without your permission for 18 years, they may have a “prescriptive easement” over your property, and the dispute would be resolved in court via a quiet title action.

One of my cases arises out of just this situation – we are seeking a prescriptive easement corresponding to a shared driveway. One legal issue that has come up is whether the knowledge or intent of the person claiming the easement matters. In other words, if the claimant intended to and knowingly crossed someone else’s property, does that preclude a prescriptive easement? Similarly, does it matter if the easement claimant made changes on their property that necessitated the use of their neighbor’s driveway?

My research on this matter shows that the answer is no – it does not matter whether the easement claimant “innocently” crossed their neighbor’s property, “accidentally” crossed it, or knew exactly what they were doing. It does not matter whether the easement claimant created the need for the prescriptive easement. The elements to prove up a prescriptive easement don’t consider the claimant’s state of mind or fairness/equity issues. They are pretty mechanical: “An 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.” Lobato v. Taylor, 71 P.3d 938, 950 (Colo. 2002).

The same is not true for claims of adverse possession. Adverse possession is similar to prescriptive easements, except that the claimant is seeking outright ownership of the land at issue rather than just an easement over it. This situation arises when the adverse possessor occupies and uses another’s property as their own, for 18 years. An infamous case in Boulder County spurred the Colorado legislature to significantly change the adverse possession statute, C.R.S. 38-41-101. You can read about the case here.

Under the law as it existed when the Boulder case was litigated, the adverse possessor’s knowledge or state of mind did not matter. An adverse possessor could knowingly squat on some or all of their neighbor’s property and then claim ownership if the squatting went on for at least 18 years. In response to the Boulder case, the Colorado changed the law, requiring that the adverse possessor prove a “good faith” belief they were the actual owner of the property claimed, and that such belief was “reasonable under the circumstances.” The law also raises the burden of proof, and the adverse possessor, if successful in court, may have to compensate the former owner of the land. Prescriptive easements claims are not subject to these changes.