Do weekly renters qualify for a prescriptive easement?

[HRZ]

Then we are left with the simple question of if the owner of a rental property can establish all the required elements of a prescriptive easement over a pathway he himself does not use on a continuous basis ? ( absent prior permission or interruption of course )

 

[justalayman]

A valid claim for a prescriptive easement will not die just because it is not recorded .but interrupting the usage before ALL the required elements of prescriptive easement come together most likely resets the time clock to ZERO .

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But it doesn’t remain viable forever.

For the sake of the discussion, while we know it appears the time requirement has been met, let’s presume all other requirements have also been met.


So that means there is a valid claim for an easement, correct?

So now the op grants permission to use the path. Does that instantly defeat the claim of PE? No, it doesn’t. If the claimants wish to have a formal easement established they have some period of time to act. Thst is the period of time I can’t define but it is surely limited.


The granting of permission would be no different than a denial of passage for purposes of accruing time. It’s just more subtle in terminating the accrual of time. So, just as a person has a limited amount of time to assert a claim for a PE once the owner of land blocks the path, so to must there be a limited amount of time for the claimant to assert his claim once the use is no longer adverse.

It may not be a defined time but something determinable only by a court. It may be what the courts determine to be viewed as the continuity of the use.

But understand, continuous use does not mean every day or every week or every month or even every year. It is the continued (a helpful adjective describing this point would be: regular) use. That means if it is used only once per year for a particular purpose but it is used every year for that purpose, that can be adequate to establish continuous use as long as that annual use is performed. I don’t know how long the courts may stretch what is accepted as continuous but as long as the landlord landowner extends permission to use the path to his tenents, even if they do not use the path, if his offer can be proven, it may be seen as continuity.

The clock is likely to not start running until such time landlord,s tenants are not allowed to use the pathway since op intends on granting use to current landowners except for the purposes of allowing tenants to use the pathway. That specific use is what allows the landlord landowner to make a claim for a PE even though op has granted permissive use for other purposes.

 

[HRZ]

NO we do NOT know that the basic time requirement of 18 years of continuous use WO permission by claimant has been met

I would agree that continuous might include seasonal or other repetive uses .

There may be lots of room to speculate IF there was prior permission granted to HOA in general , if a member of HOA can secure a prescriptive easement on behalf of this tenants over and above permission !

 

[justalayman]

According to online sources, it's 18 years in OP's state, which is why OP's neighbor made reference to renting for 18 years.

However, OP just bought the property last year. We do not know if the previous owners granted permission to neighbors, or was oblivious to others' use of the property. Open and notorious non-permissive use, uninterrupted for 18 years seems to be what is required.

If there was a prescriptive easement at the time of purchase, it apparently was not listed in the title, otherwise I think OP would have mentioned it.

There is a claim to a PE. It is not something one lists in a deed, especially if the purchased property is the land the claim is against. It is only a right to make a claim. Once the claim is made and if upheld by the court, then it becomes a formal easement and that would be included in the land records of the op’s property. Until that time it’s only an intangible issue.


Being oblivious to a claim does not make the claim any less viable. One must be active in defending the rights to,their property lest they risk losing them. While a hidden use does not allow for a valid claim for an easement (must be open and notorious) , turning a blind eye to an obvious use does not provide a claim the use wasn’t adverse. In this case it is apparent the use is obvious otherwise the op wouldn’t be aware of the use.


And as i stated a short while ago (and yes it is a change in my understanding of the situation) , the op permitting use by the local land owners for their personal use is not the issue. The use by the landlords renters is what is the issue. Op intends on prohibiting that use and that is not affected by the permissive use by the land owners.


As such, the clock continues to run until such time renters are prohibited to use the path. That then starts the clock of how long does a claimant have to assert their claim in court before they lose thst right.

 

[justalayman]

NO we do NOT know that the basic time requirement of 18 years of continuous use WO permission by claimant has been met

I would agree that continuous might include seasonal or other repetive uses .

There may be lots of room to speculate IF there was prior permission granted to HOA in general , if a member of HOA can secure a prescriptive easement on behalf of this tenants over and above permission !

It appears, based on the facts at hand, the time requirement has been met. If we don’t make some assumptions all the requirements may have been met, there is no purpose for engaging in this discussion. We deal with “what if’s” and try to provide some insight into the matter. Otherwise it would be a very empty discussion board


And I’m glad that you agree with all the courts that have stated seasonal or other repetitive use qualifies as continuous as long as the periodic use is what is continuous. I would hate to think you disagreed with standing law.

 

[HRZ]

I'm not disagreeing....merely noting that OP is short the facts of how long exactly the renters have been making rather uninterrupted use of that pathway without permission ...and if it's a tad short of 18 years it may be critical to put ice water PRONTO on the use instead of debate .

CO may based on case law put the burden on OP to show the criteria were not met .

OP would be wise to use seasoned CO land use attorney darn soon .

IF there is CO case law as to mere short term (weekly) renters being able to prefect the conditions for a prescriptive easement I'll be glad to read same if somebody has a reliable link

 

[not2cleverRed]

There is a claim to a PE. It is not something one lists in a deed, especially if the purchased property is the land the claim is against. It is only a right to make a claim. Once the claim is made and if upheld by the court, then it becomes a formal easement and that would be included in the land records of the op’s property. Until that time it’s only an intangible issue.


Being oblivious to a claim does not make the claim any less viable. One must be active in defending the rights to,their property lest they risk losing them. While a hidden use does not allow for a valid claim for an easement (must be open and notorious) , turning a blind eye to an obvious use does not provide a claim the use wasn’t adverse. In this case it is apparent the use is obvious otherwise the op wouldn’t be aware of the use.


And as i stated a short while ago (and yes it is a change in my understanding of the situation) , the op permitting use by the local land owners for their personal use is not the issue. The use by the landlords renters is what is the issue. Op intends on prohibiting that use and that is not affected by the permissive use by the land owners.


As such, the clock continues to run until such time renters are prohibited to use the path. That then starts the clock of how long does a claimant have to assert their claim in court before they lose thst right.

While that is true, and in fact would indicate non-permissive use, it is unknown whether the previous use was in fact non-permissive.

For all we know, the previous owner might have granted the HOA permissive use.