Robbins: Digging into property laws
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 the land by one who knows they are not authorized or privileged to do so; and (a) who 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” begins innocently, where a person enters onto another’s land permissively but may later be considered a trespasser “from the beginning” (that is, ab initio) if his or her subsequent conduct constitutes a 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 contract — for which the court will provide a remedy in the form of monetary damages).
To understand at least one type of encroachment, trespass’s intellectual cousin, one must first know what an easement is.
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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 land. In such circumstances, the most common solution is an easement.
In essence, you grant me the legal right to cross your land to gain access to my home. While the land remains yours, my right to cross it is a legal right that I “own.” The property “burdened” by the easement (your land) 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 (notwithstanding your ownership, my right to cross is superior or “dominates”).
There may be limits to an easement. For example, the only use I may make of your land is my right to cross it going to and 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 that I will address in a coming column, 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 land permits me ingress and egress to and from my residence. 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 a 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. They may also be less innocent. Encroachments may often be corrected by giving or selling the encroaching party an easement or lease for the lifetime of the offending structure.
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 land 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 land, 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 enter 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, adverse possession is a method of acquiring legal title to real property simply by possessing it for a statutory dictated length of time.
Say I start as a trespasser to your land. If I occupy it long enough, it may ultimately become mine. I may acquire the legal right to possession and ownership just by hanging on for a long enough period 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, other requirements 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 (although in this state, anyway, fair value must be paid).
The law of real property is fascinating, often complex, and interrelated in ways both subtle and profound. 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 with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.
