Land Disputes and Other Land Laws

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ILLUSTRATION: KIM DREW
Land disputes are the source of many road blocks.

Q: In 1972, my wife and her late husband purchased 3,800
acres in a western state. For many years, the only access
to the east side was an old road off of a county road that
the original homesteader used. An aerial photo taken in
1952 shows the road well within the fence line for about a
half mile to the homestead.
My wife’s family used this road for many years to
access the property for hunting and fishing and other
recreation. Even after they moved out of state, they
returned from time to time. The only other access was the
long way around or through a section of state land, if the
old jeep trails through it were even passable. D
uring the mid ’70s, the adjacent land was developed
into a subdivision of approximately ten-acre parcels. This
sub division engulfed the old road. The family continued to
use the road up until 1991. During her late husbands
illness, my wife sold much of the property but held on to
part of it.

When we married, my wife and I moved to the township
sixteen miles away to begin building on the property.
Everything was fine for a while. Then we moved a fifth
wheel onto the property, and also a 10′ by 50′ mobile
office. We were blockaded at the subdivision entrance by
two members of the subdivision home-owners association. I
couldn’t reason with them, and my son had to get the
sheriff. The sheriff escorted us to the property gate,
approximately three miles, and stated that we had legal
access to our land.

Shortly thereafter, we had to go to California to help
our daughter after an earthquake and were gone for over
year.
In the meantime, the ten acres at our entry gate was
purchased, and the owner sealed the gate with wire and
dumped a pile of dirt in the road on his side of the fence.
He then sent my son a letter telling him to stay of the ten
acres or go to court. My son is not the legal owner, so he
passed the letter on to me. We returned to reason with the
association to no avail. We even offered to pay our share
of the road maintenance.
As a result of limited finances, we refrained from
legal counsel, and since we were essentially land-locked,
they wouldn’t even let us remove the RV and trailer. They
are sitting there deteriorating to this day.
Meanwhile, the portion of land my wife sold was turned
into a subdivision. The road building was difficult and the
developer finally abandoned the project. During this time,
a legal easement and road was created to our west entrance.
It is ten miles farther and only accessible in dry weather
we haven’t been able to build on our land because cement
trucks and propane trucks refuse to use the new road. We
desire to be a good neighbor.

Can you help?

–R. A.
Name and address withheld

A: Easements are the boon and bane of many country property
owners! It sounds as if you originally had an easement by
prescription to the land: that is, an access route that was
used for so long that access could not be denied. Such an
easement does not usually have to be used on a daily basis,
only used consistently according to the type of land. For
example, if the land was used for recreational purposes,
then sporadic use of the easement was enough to maintain
rights of access. But in many states when you cease
using this type of easement, you may be in danger of losing
it.

Easement law is complicated, however, and it varies from
state to state. It is possible that an easement used for
recreational purposes will not be acceptable for
residential purposes, although if the land was an old
homestead, your easement will probably provide residential
access.

Financial considerations not with-standing, you must check
with an attorney to determine your rights. Be sure to take
care in locating an attorney well versed in easements. Most
are not, and many do not even realize easements are
practically a field unto themselves.

Mother consideration: in many states if you allow a
situation to continue for a certain number of years without
taking any action, you give up any rights you may have had
to pursue the matter. Do not delay on this. Seek an
attorney and consult him or her immediately. It may be
possible that your attorney can explain your rights to the
concerned parties and that will be the end of it. Good
luck.

Q: I purchased a ten-acre patented mining claim in the
mountains of Colorado. The land is located within a
national forest. The access road was originally closed off
by the Forest Service, but a few years before I bought the
land, someone bad torn the sign down. The real estate
company assured me the Forest Service could not deny access
to my land. I wrote to the forest service asking permission
to use the road. They wrote back saying it could take years
to receive road access permission from them, and they
demanded to see a building permit, even though I had not
mentioned building in my letter. I did not reply to this
and so far am continuing to use the road.

After all that, I called a building inspector and asked
what I needed to do to get a building permit. He told me I
could build up to 160 square feet without a permit. He then
asked me where the land was. When I tried to explain the
location and that there are other cabins in the area, he
suddenly changed his opinion and recommended that I not
build at all. He also stated that if there is an existing
cabin on the land, I could not even add a nail to it
without a permit. All I wanted to know is if I could put up
a small cabin on the land, but I just got a runaround and
no answer.

Could you please answer my questions? (1) Can the
Forest Service deny me access or is the road grandfathered
in? The mine was founded in 1899. (2) Is the building
inspector wrong about building a cabin on the land when be
doesn’t know where it is located? Can I build a cabin
without electricity and water? (3) How do I determine if I
have water rights to my land?

–Jackie Arnold
Red Cliff, Colorado

A: One should always verify legal access and other rights
before buying real estate. If you want to build on land,
you should always verify that you can do so before the
purchase is finalized. To answer your questions:

(1) About your access: Allan Grimshaw, with the U.S. Forest
Service, Aspen Ranger District, was very helpful in
clarifying the access question for you. He states that the
Forest Service roads provide public access, and that
includes landowner access for parcels within the national
forest. However, the forest supervisor may close some roads
on a seasonal basis to protect them from damage due to
seasonal instability. During such closures, a landowner
usually may continue to use the road but may be responsible
for any damage he or she my cause. When writing such
closures, the supervisor my exempt landowners, or require
them to obtain a special use permit allowing them to use
the road.

Mr Grimshaw cautions that the Forest Service is not in the
business of providing roads or maintenance like the county,
but generally does not deny public access over its roads.
He also warns that certain areas in the state are very
confusing, with mining claims that pre-dated the national
forest, non-existing roads still on record, and
non-official roads that do exist. You should check directly
with your local ranger district about your road.

You might also check with the title company that issued
your title report when you purchased the land. They my very
well show an easement of record that provides access.

You could also check with the U.S. Government Bureau of
Land Management (BLM). They directly oversee and keep
records on mining claims and my be able to locate records
of an access road that serves the claim.

(2) Regarding a building permit: the State of Colorado and
each county has its own set of zoning roles and building
regulations that apply to each specific area. You should
take your latest land tax bill to the county building
department to show exactly where your land is located. They
can then determine which zoning and/or other regulations
apply to your land for building purposes, and what you will
need to do to obtain a building permit. If your land is
located near Red Cliff in Eagle County, you could talk to Jean Garren in the Eagle County Planning Department. Her
phone number is (970) 328-8893. It my take a day or more to
research the regulations that apply directly to your land.
If it is in another county, you must check with that
county’s building department.

(3) Water rights: unlike other property rights, water
rights are not a matter of title in many states, including
Colorado. To find out about water rights, you must contact
the State of Colorado, State Engineers Office, Division of
Water Resources, in Denver. Once you give them your legal
description, they can tell you if you have existing water
rights or if they are available and what it will take to
get them.

Q: My question a about the payment of property taxes and
the relevance, if any, of those payments to the ownership
of the property. Here’s my situation:

My sister and I inherited a piece of property thirty
years ago. Neither of us lives on the property, nor are we
geographically near it. We live in different states. For
many years, I was struggling to survive as a single parent.
During that rime, my sister, who is single, managed the
property to the extent of paying the taxes from a fund
accumulated by the rental of a house on the property. Now
that my children are grown, I spend time once a year on the
property, maintaining the house and grounds.

I became aware that the bank account that handled the
rental income and expenses was in my sister’s name only,
whereas the account itself was our joint money. After some
effort, I arranged to have the account put in both our
names, but she continues to pay the taxes from the account.
The tax bills are sent to her and tax records are in her
name only.

Recently, in order to obtain aerial views of the
property, I was asked to submit a tax receipt as proof of
ownership and, of course, I had none. Added to this, a
friend of mine says that the payment of taxes for so long
by one person gives that person some sort of claim to the
land beyond our joint ownership. Could this be so? I tried
at one time to have the local tax office, where the
property is located, add my name to the tax record and to
the tax receipts. They refused and said that any question
of ownership of the property is easily answered in the will
by which we acquired it. There is no deed.

I feel uneasy about all this and would appreciate your
advice. This is very important to me as my sister and I
view the property very differently She has wanted to sell
it but I refused. I love the land and would not want to part
with it. I am not financially able to buy her half.

–Name and address withheld
New Jersey

A: You are concerned about the possibility of a claim by your
sister through adverse possession, but that may not be too
likely. In order to make that type of claim, all of the
adverse possession requirements must be met, not simply
payment of taxes. To be sure about this, discuss it with an
attorney in the state in which the land is located.

You did not say in which state the property is located.
Determine who normally searches tide in that state and seek
advice from the entity that handles such matters. That may
be a title company, attorney, or individual belonging to a
title search association. Once you reach the right entity,
it shouldn’t be too difficult to prove your co-ownership
via the will and learn how to have your name recorded as a
co-owner. You my have to pay for a consultation, but if it
is a simple matter of recording an appropriate document, it
shouldn’t be too costly.

Even though you and your sister differ philosophically
regarding the land, it sounds as if she has been diligent
in trying to manage the rental and tax funds. If she wants
to sell and you can’t afford to buy her share outright, you
might try offering her installment payments. Be sure to
formalize agreements with a land sales contract and record
it.

Send your questions to “Country Real Estate, ” c/o
MOTHER EARTH NEWS, P.O. Box 129, Arden, NC 28704, or via
email at MEarthNews@aot.com, Enclose a photo and we’ll make
you famous. Please keep in mind that state laws vary and
that this column is no substitute for local legal
advice.