Do weekly renters qualify for a prescriptive easement?

[dritchie]

We purchased 40 acres in Colorado last year. It is at the end of a private road, and is actually an inholding within the National Forest Service. We’ve given the 33 homeowners in our HOA the right to walk through our property to access the forest on the other side. Now one of those owners wants a formal trail easement so people he rents to can also traverse our land. Our wildlife cameras have found his renters playing on our furniture alongside a creek that goes through our property, so we don’t want to extend the access to his renters. He’s claiming that a prescriptive easement insures their use of the trail, since he's been renting over 18 years. Our contention is that since it’s not the same renters returning over time to rent his property, a prescriptive easement would not qualify in this instance. Any thoughts as to who is right? Thanks.

 

[FlyingRon]

Eh? Renters are never permitted to get a prescriptive easement. That's something that goes to the owner. Now if you intend to say that the owner has been having his renters walk over your property in an open, notorious, and hostile form, then that might qualify.

However, I'm confused. What do you mean "You gave the 33 homeowners the right?" How did you do that? If you gave them permission, then they can't claim a prescriptive easement no matter how long they've been using it.

 

[dritchie]

Thanks FlyingRon.

At our HOA meeting last month, to be neighborly, I announced (and it appeared in the minutes) that the other home owners in the association have permission to use the trail across our property. They've been doing so for years, and I thought they might try to force the issue if I cut them off--although I have no intentions to do so. I think the one owner is trying to claim that his previous use of the trail is transferable to his renters.

As far as giving permission, my thought was that by doing so, in the future I may have the option to rescind it, and that the 18 years of continuous, open, and notorious use would be broken.

 

[FlyingRon]

That is true. In fact, I'd have made a written notice just so that it is clear that the use was permissive (and hence revocable).
What I'd do is write a letter to the HOA (c/o the board or whatever) saying that you were restating the permission to use the path as you stated in the HOA membership meeting of whatever date it was.

The other homeowner is a bit ill-learned on the law. You don't just say "I have a prescriptive easement." Easements occur one of two ways: by being explicitly granted (which you have not done) or having a court declare the prescriptive easement (or easement by necessity). Absent you or the court granting it, it doesn't exist.

Send the letter, let us know if you get served with court papers. If you chose to rescind the permission, you'll likely have to both notify the HOA and post the property before you can take action.

 

[dritchie]

Thanks again FlyingRon. Those are the types of ideas and actions I had hoped to learn in this forum. I appreciate the help.

 

[Zigner]

Interestingly enough, if your post above is what you actually said, then assigning his right to use the trail to a renter may be perfectly acceptable.

 

[dritchie]

Thanks Zigner. I verbally announced in the meeting that the rights extended to owners and their families, but not to renters. In the minutes that were distributed, it only stated that we had given the rights to owners.

It seems odd (but of course plausible) that owners would be able to transfer those rights to renters. If so, would they also be able to extend those rights to friends? And if so, could the rights be extended to their acquaintances? It seems like a slippery slope that would eventually include everyone.

 

[not2cleverRed]

Thanks Zigner. I verbally announced in the meeting that the rights extended to owners and their families, but not to renters. In the minutes that were distributed, it only stated that we had given the rights to owners.

It seems odd (but of course plausible) that owners would be able to transfer those rights to renters. If so, would they also be able to extend those rights to friends? And if so, could the rights be extended to their acquaintances? It seems like a slippery slope that would eventually include everyone.

The others have pointed out that permission is revocable.

You would do well in your letter to define what it is that you are allowing as permissive use. For example, that they stay within a certain area of the pathway, and not disturb your personal property, such as furniture. You should also include that you reserve the right to revoke permission, if someone is not abiding by rules, posted at the entrance to your property. Hey, you probably don't want litter, smoking, dog poop...

I am assuming that your issue is just that you want to be neighborly to those who are your neighbors. Rather than make an issue of who is an owner or who is a renter, make an issue of which residents treat your property respectfully and which ones don't.

 

[adjusterjack]

It seems like a slippery slope that would eventually include everyone.

Exactly.

Imagine, if you will, that your neighbor has to drive through your property to get to his property because there is no other access for him. If he rents out his property, his tenants will also have the right. If he invites his friends over, they will also have the right.

The point has been made that your permission is revocable. If it was me and people were starting to give me grief I would revoke it to everybody in a heartbeat, post the property, and enforce it.

 

[dritchie]

Thanks for the notes from both Not2cleaverRed and adjusterjack. I really like the idea of specifying the constraints in the letter. I'll do that.

 

[justalayman]

the problem with giving permission if the claim for a prescriptive easement has already ripened is irrelevent. Your permission does not remove the 18+ years prior use which is the time required to gain a claim for a prescriptive easement. It would stop the accruing of time from now forward but doesn’t remove the time already accrued.

 

[not2cleverRed]

the problem with giving permission if the claim for a prescriptive easement has already ripened is irrelevent. Your permission does not remove the 18+ years prior use which is the time required to gain a claim for a prescriptive easement. It would stop the accruing of time from now forward but doesn’t remove the time already accrued.

OP just bought the property last year. Would that be a factor?

 

[justalayman]

OP just bought the property last year. Would that be a factor?

The claimants rights are not severed by the change of ownership. The claimants have until the statute of limitations to file a claim expires so op might want to play nice until that time expires. Offhand I can’t tell you how long that is.

 

[FlyingRon]

Statue of limitations on what claim?

 

[justalayman]

Statue of limitations on what claim?

There is a time limit the people that currently have a valid claim to make their claim for a prescriptive easement. I just don’t knkw what it is.