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P. Simmons
P. Simmons, Attorney
Category: Legal
Satisfied Customers: 25476
Experience:  16 yrs. of trial experience
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My wife has had equestrian access to land neighboring our property

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My wife has had equestrian access to land neighboring our property for 21 years. The original owner made no legally filed easement agreements, just verbal agreement. Since then the original owner tried to develope the land, defaulted on a huge bank loan, and lost the land to another developer. The newly formed home owners association just sent us a certified letter demanding my wife cease riding on the property with threat of trespassing charges. In addition a portion of the land covers an old dump which our county is "capping". The "dump" area is the primary area my wife rode on. Does she have any "grandfathered" rights of access to the area?
Wayne G. Fennimore, Pine, Colorado
Submitted: 6 months ago.
Category: Legal
Expert:  P. Simmons replied 6 months ago.
Hi, My name is Philip. I am an attorney with over 16 years experience. Hopefully I can help you with your legal question.

What you describe is an "easement"

This is a real property right that allows access of real property by someone other than the owner of the property.


There are several different types of easements, and different ways to acquire them.

Can you tell me, the property in question...did you acquire that property from the neighbor (the one who has granted access in the past)?

Customer: replied 6 months ago.

The property in question is known now as The Reserve at Brauch Ranch on Jefferson County Hwy. 126 (Pine Valley Road), and the property we own 'may' have originally come from the Brauch family before 1978 - we don't know for sure. My father-in-law (95-years-old) bought the property we habitate in 1993 after securing a verbal agreement from Earl Brauch that my wife could ride unrestricted on the 567 acres of what was the Brauch Ranch at the time. Since developement of the ranch, only 7 lots remain unsold out of 27 lots. Our property (deeded to my wife per the trust at the passing of her father) borders only the 'outlot', the former unregulated, county-run (Jefferson County, Colorado) landfill which will be capped by October of 2014. We currently don't know what easement rights we may have to the developement (in the no-build zones would be more than satifactory) and we don't know what county restrictions to the outlot would be. I have searched the Jefferson County website and the Denver Water Board website (has an interest in the water) without finding any info on the capping of the old landfill. The original owner (Earl Brauch - don't have contact info for him any more) advised us to continue to maintain the gate on our property that accessed the outlot (said gate original to property when we arrived). The open grassy area that comprises the old landfill and neighboring properties of the developement has been haven to elk, deer, coyotes, fox, bobcats, and other wildlife for years.

Expert:  P. Simmons replied 6 months ago.
Thank you

I ask, since one of the ways to force an easement (if you had to go to court an attempt to force and easement) would relate to common ownership of the land

What you describe sounds like an easements by prior use, which is based on the idea that land owners can intend to create an easement, but forget to include it in the deed.

There are five elements to establish an easement by prior use:
-Common ownership of both properties at one time
-Followed by a severance
-Use occurs before the severance and afterward

But you would have to prove this...you would have the burden to show that there was prior use (during common ownership).

If you could show this? That could get you an easement.

Otherwise?

I think you have an uphill battle

There is an easement "by prescription"

This is available in cases where you can show that a person or persons had "adverse possession"...basically if you can show use over the requisite period of time (20 years) AND that the use was adverse (against the will of the owner) you can claim the right. SO, for example, had you used this for the last 20 years without permission? You would have a great case. But it sounds like you had permission...so this would not apply

Then there is "easement by necessity". But necessity alone is an insufficient claim. Parcels without access to a public way may have an easement of access over adjacent land if crossing that land is absolutely necessary to reach the landlocked parcel and there has been some original intent to provide the lot with access,

This is most common for a tract of land that is "landlocked"...no other way to a highway or public road. I do not think it will apply in the case you describe.

What you describe? I think you have a tough case to try and prove an easement.


I am very sorry to have to bear bad news.


Please let me know if you have more questions...happy to assist if I can

Customer: replied 6 months ago.


We believe the letter we received from the home owner's association was sent by them out of fear of repercussions from the county concerning the use of the land to be 'capped'. If the access of the outlot in areas that aren't directly part of the 'cap' of the landfill is allowed by the county, we believe the H.O.A. may agree to allow my wife continued riding on the developement 'no-build' lands. We really needed to be informationally armed as to law and presidences set with this kind of situation - which I think you have provided (thank you very much). A neighbor on the opposite side of our property seems to have information that says the original owner may still somehow have a hand in control of the land - we have hopes that this is so, and perhaps then our only remaining question is what kind of restrictions are placed on the use of capped landfills in Colorado. I hope to learn more in a trip to the county offices next Monday.

Expert:  P. Simmons replied 6 months ago.
Thank you

So is that land "the land to be capped"...is that county land? Or is it private land they want to develop in some manner?
Customer: replied 6 months ago.


The 'to-be-capped' land is private land, part of the developement. I don't believe the developers hold any hope of developing that land - it has been filed with the developement plans as an 'outlot'. The original owner apparently sued the county ten years ago to clean up the unregulated dump they, the county, had apparently managed years before. I don't yet understand the business of a county running a landfill on private property...oh well.

Expert:  P. Simmons replied 6 months ago.
Thank you

SO what is their plan for this land...do you know?

I think I understand the dynamic here...they own it and are exercising their right to ownership (by denying you access)...but do you have any idea of their long term plan to use this land?
Customer: replied 6 months ago.

So far we have been told the 'outlot' will remain just that - never to be built upon. From searches I've done so far, gathering info on landfill capping from other states, (have found no info on Colorado yet) the capped areas can never be built on. I don't know what kind of continued use would be permitted in this case. Some states have opened capped landfills to picnicing and hiking, with some states allowing equestrian access but no livestock grazing.
The developer has developed property that is adjacent to The Reserve at Brauch Ranch that includes equestrian trails throughout the developement. He had expressed a desire to have the same situation at Brauch Ranch, but developement plans do not include trails, only no-build zones around the outlying areas of each lot.


If you for any reason are curious about the lay of the land, you could Google Earth our property, the Robert P. Waldmann Trust (Robert is a retired full-bird Colonel from the Air Force) at 13905 Pine Valley Road, Pine. CO 80470. The Brauch Ranch is just south of our property.


Thanks again!

Expert:  P. Simmons replied 6 months ago.
Thank you

It is federal law that regulates this...that is, title 40 Code of federal regulations, is the area of the law that covers post use of landfills. YOu can see the law here

http://www.law.cornell.edu/cfr/text/40/258.61

You see they have to wait 30 years minimum before they can do anything...

SO I suspect this will be open space for some time.


While you do not have a strong case for easement, the threat of lawsuit can sometimes, in and of itself, be a point of leverage.


I was asking about their intended use, as it may you can find a way to incorporate your desires for its use with the that of the landowner. They need to tell you to "stay off" to protect their property rights (if they did not do so they run a very real risk of setting up a case where you have a strong claim for an easement).

I would sure try and work out a solution. If you can negotiate with them, perhaps even intimating that you are talking to a lawyer and considering suit, it may be they will agree to grant you permission.


Please let me know if you have more questions...happy to assist if I can





Customer: replied 6 months ago.

Thanks so much for your information! Actually I believe there may already be a lawsuit forming - or a threat anyway - from property owners of the developement that bought lots without it ever being disclosed that there was the remains of an unregulated landfill that could influence water quality. My wife and I had been familiar with the area for years, so we already knew about the landfill before moving here. We found out about the disgruntlement of the neighbors because a letter went to our neighbor across the street who bought a lot next to him that was part of the developement. The letter asked him if it had been disclosed to him about the landfill when he bought his lot from the developement; which he had not been informed. The new property owner next to him then was beside himself with rage, also not being informed. There were names of other concerned developement property owners in the letter also - or so I am informed.
It was my wife years ago that brought the attention of some neighbors in the area (before Earl Brauch decided to develope) that there was the unregulated landfill upslope from state land that was being considered for a state youth sex-offender facility. The state abandoned the idea of the facility, and this made the land available for a land developer to buy and develope that piece of land. It is the same developer who now owns the Reserve at Brauch Ranch developement (barring the heresay that Brauch may still have ownership or control of the land in some way). There are so many secrets around here!


In fact, it does look like the property we reside on was at least an unofficial part of the landfill involved. Perhaps we should be looking into our rights in that aspect.


I tell you, there are all kinds of interesting stories of the conflicts between neighbors around here. My wife and I have always taken a stance of mitigators between parties, usually with the result of conflict resolution. At one point I was suppoenaed (spelling?) as a witness in an easement conflict between neighbors, and was asked by the judge if I was the only sane person in the room (himself excluded I hope). It's a bit of the Old West here from time to time, including a time when the original developement owner paraded around the access to a neighbor's property on the opposite side of ours with a few friends - all with loaded assault rifles over their shoulders.


Thanks for hanging in there with me over this issue. I hope it's been a bit entertaining at the least. I'm sure I'll learn more from the county and more from the developement's H.O.A. in the future.

Expert:  P. Simmons replied 6 months ago.
You are welcome.

I wish you the best of luck in this fight...you certainly have one on your hands


Please let me know if you have more questions...happy to assist if I can
P. Simmons, Attorney
Category: Legal
Satisfied Customers: 25476
Experience: 16 yrs. of trial experience
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