Vail Law: Law of the land |

Vail Law: Law of the land

Easements, encroachments, licenses and trespasses may all affect the land. However, how they are related, and how they are distinct, makes all the difference.

While trespass can, technically, extend to other than real estate, generally speaking trespass is an offense against land or other real property and may be defined as an unlawful interference with one’s property rights. Trespass is the entering or remaining upon land by one who knows he is not authorized or privileged to do so; and (a) he enters or remains there in defiance of an order not to enter; or (b) such premises or property is posted in a manner reasonably likely to come to the attention of intruders, or is fenced or otherwise enclosed.

A “continuing trespass” is one where there is a permanent invasion of the rights of another for example, where a person builds on his own land so that a part of the building overhangs his neighbor’s land. The essence of it is a continuing wrong so long as the offending object remains. A continuing trespass may be distinguished from a “permanent trespass” where a series of acts, done on successive days, are the same in nature and are renewed or continued from day to day so that, in some way, they make up one indivisible wrong. A “trespass ab initio” is one which begins innocently, where a person enters onto land permissively but may later be considered a trespasser “from the beginning” if his or her subsequent conduct constitutes trespass by an abuse of his or her permissive use. Trespasses may be criminal or constitute a civil “tort” (a private wrong or injury – other than breach of the contract – for which the Court will provide a remedy in the form of money damages).

To understand at least one type of encroachment, trespass’s intellectual cousin, one must first know what an easement is.

An easement may be defined as a right of use over the property of another. Say, for example, you and I are neighbors and the only way for me to get to my home is to cross your yard. In such circumstance, the most common solution is an easement. In essence, you grant me the legal right to cross your lot for the purpose of gaining access to my home. While the yard remains yours, my right to cross it – my easement – is a legal right which I “own.” The property burdened by the easement (your yard) is the “servient” tenement or estate (i.e., the land that “serves” the easement); the easement (my right to cross) is the “dominant” tenement or estate.

There may be limits to an easement. For example, the only use I may make of your yard is my right to cross it going to from my home. I may not, however, hold a weekly polka fest on the easement, for example. Or an easement may be more expansive. There are more than a dozen “stripes and flavors” of easements, each with special twists and restrictions. What is common among them, though, is that, in one way or another, an easement is an “interest” one person has in the land of another.

With this understanding of easements, back now to encroachments. An encroachment may be where the owner of an easement alters the dominant estate so as to impose additional restrictions or burdens on the servient estate.

Let’s say my easement over your yard permits me ingress and egress to and from my home. I can go back and forth across your yard (usually in a strictly defined location, such as a driveway), but nothing more. Nonetheless, I decide to build a carport over the driveway near my home. If the carport is within or upon the easement, I have encroached upon it and thereby interfered with your rights to your property. This, I may not legally do and you may have the right to extinguish the encroachment by compelling its removal.

Encroachments may also be comprised of the situation where a structure is built in whole or in part on a neighbor’s property. Encroachments may be the result of incorrect surveys, mistakes or miscalculations by builders and/or owners when erecting a building. Encroachments may often be corrected by giving or selling the encroaching party an easement or lease for the lifetime of the building.

A “license” is use by permission. While less than an easement, a license may confer similar rights. Although, if I own a license to cross your yard to get to my home, I don’t technically have an “interest” in your land, the practical effect may be largely indistinguishable. By granting me a license to cross to and from my home across your lot, I have a contractual right to do so, at least so long as the term of the agreement is in effect. In such a setting, a license is a privilege to go on to the premises of another for a certain purpose but does not operate to confer on, or vest in, the license holder any title, interest or estate in the property.

Adverse possession is yet another related interest in real property. While volumes have, and could, be written about this subject alone – particularly in light of recent changes in the law in many states, this state among them – in “thumbnail”, adverse possession is a method of acquiring legal title to real property simply by possessing it for the statutory length of time. Say I start out as a trespasser to your land, if I occupy it for a long enough period of time, it may ultimately become mine. I acquire the legal right to possession and ownership just by hanging on for a long enough time and defending my interest in the land against all others. What wasn’t mine becomes mine largely by the strength of pure tenacity. Of course, there are other requirements which must be met to make it so, the details of which are beyond the scope and limits of this column. Suffice it to say, however, that if all legal requirements are met, at least in some circumstances one may acquire the property of another without sale, purchase or other formal transfer.

The law of real property is fascinating, complex and interrelated in ways both subtle and profound. Even in this era of depreciating value, the simple fact is that land – especially desirable land – is a limited and irreplaceable resource and as long as law has been around, it has been treated with special deference and consideration.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. His practice areas include: business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) and seen on ECo Tv 18 as host of “Community Focus.” Mr. Robbins may be reached at 970/926.4461 or at his e-mail address:

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