With
increasing urbanization, access may be the most commonly discussed cocktail
party issue faced by lawyers (or real estate agents) who have clients
in the mountains or rural areas. Although one of the attributes of land
ownership is the right to gain access, there are many limitations and
rules.
"Access"
takes many forms. It may be actual ownership of a strip of land connecting
a building site to a public road. The "fee" owner pays all
taxes and has all rights in the land. Or access may be an "easement"
- a specific grant to use a described parcel for a stated or limited
purpose. Rights not granted stay with the owner of the land. For example,
the power company may have an easement to hang its wires on a pole,
but the land owner may have retained the right to farm under the power
line. "Rights-of-way" may be fees or easements. Some railroad
rights-of-way are owned in fee by the railroad - when they pull up the
tracks they still own the strip.
The
actual words used and the manner of creating the grant determine whether
the access is a fee or an easement, and the nature of the rights of
the parties. Regardless of the form, access is of little use unless
other persons and subsequent purchasers have notice or knowledge. The
only sure way of giving notice is to record the document which created
the access in the public records at the Office of County Recorder.
The
most obvious means of creating access is to purchase or convey a fee
or easement, by deed or other form of conveyance. The document can be
recorded and establish for future owners the exact rights granted and
reserved.
"Public
roads" established by the County or other jurisdiction may be shown
in the public records. Or roads may have been created by use of the
public lands before title passed from the Federal government such as
by miners traveling to their claims. These may not show in the public
records. Such "roads" may date back to the middle 19th Century
and many hours of detailed research may be required to prove whether
such roads were established or abandoned.
A
public or private way may be created by "prescriptive" use.
Under Colorado law the facts to establish prescriptive use must show
that the claimant has made continuous and uninterrupted use of the property
in an adverse, open, and notorious manner. If it is private, 18 years
of such use is required. If it is by the public, the statute requires
20 years. A prescriptive right cannot be obtained over government land
(such as the National Forest).
Sometimes,
when a parcel is separated from a public road by sale of land between
the road and the parcel, an implied easement may be created to access
the parcel across the land sold. A detailed title search of the parcel
sold off, and of the adjoining parcels, may be needed to prove or disprove
such a right. Since the right is only by implication, careful interpretation
of the evidence in the public records is required.
Much
time and effort has been consumed in defining both private and public
prescriptive ways or in proving an implied right of access. The proponent
in each case bears a heavy burden of proof. The cases are dependent
on the peculiar facts in each instance. Unless all parties can agree,
the facts in each case may need to be laid before a court in order that
a decree may be obtained and recorded in the public records.
Some
of the many facts which must be examined include: who pays the taxes;
does someone live on the land; what type of use is being claimed; is
the use daily or seasonal; was a claimed closure such that the user
would have reason to know; was the closure by a permanent fence or by
a temporary gate; does a practical alternative route exist.
Alternative
access is one of the most overlooked factors. If there is no other practical
or feasible means of getting to the property, regardless of the cost,
the courts are more likely to find a means of access since, as noted,
one attribute of ownership is access. If there is an alternative route,
even though it might be expensive, the opponent may be able to block
the access.
Even
if existence of an access right can be established, there may be limitations.
Proof of access by foot does not necessarily imply access by vehicle.
Proof of seasonal access may not establish year-round access. Establishment
of access by foot or by vehicle may not satisfy the building regulations
of the jurisdiction where the land is located. Boulder County, for example,
has stringent requirements for the construction of roads and driveways.
A building permit might be rejected because of the steepness of the
access road.
There
is no easy "rule of thumb" that can be given to establish
(or prevent) access. Each case must be examined and all of the facts,
circumstances and history must be taken into account and weighed.
Unless
the parties can reach a written agreement, the facts need to be established
to the satisfaction of a court and a decree needs to be issued. Recording
evidence of the facts alone will not satisfy the law. A competent attorney
knowledgeable in the field should be consulted regarding access matters
before property is purchased or promptly after questions are raised.
