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Know Your Rights


Copyright © 1996
Karl F. Anuta, Attorney

With increasing urbanization, access may be the most commonly discussed cocktail party issue faced by lawyers (or real estate agents) who have clients in the mountains or rural areas. Although one of the attributes of land ownership is the right to gain access, there are many limitations and rules.

"Access" takes many forms. It may be actual ownership of a strip of land connecting a building site to a public road. The "fee" owner pays all taxes and has all rights in the land. Or access may be an "easement" - a specific grant to use a described parcel for a stated or limited purpose. Rights not granted stay with the owner of the land. For example, the power company may have an easement to hang its wires on a pole, but the land owner may have retained the right to farm under the power line. "Rights-of-way" may be fees or easements. Some railroad rights-of-way are owned in fee by the railroad - when they pull up the tracks they still own the strip.

The actual words used and the manner of creating the grant determine whether the access is a fee or an easement, and the nature of the rights of the parties. Regardless of the form, access is of little use unless other persons and subsequent purchasers have notice or knowledge. The only sure way of giving notice is to record the document which created the access in the public records at the Office of County Recorder.

The most obvious means of creating access is to purchase or convey a fee or easement, by deed or other form of conveyance. The document can be recorded and establish for future owners the exact rights granted and reserved.

"Public roads" established by the County or other jurisdiction may be shown in the public records. Or roads may have been created by use of the public lands before title passed from the Federal government such as by miners traveling to their claims. These may not show in the public records. Such "roads" may date back to the middle 19th Century and many hours of detailed research may be required to prove whether such roads were established or abandoned.

A public or private way may be created by "prescriptive" use. Under Colorado law the facts to establish prescriptive use must show that the claimant has made continuous and uninterrupted use of the property in an adverse, open, and notorious manner. If it is private, 18 years of such use is required. If it is by the public, the statute requires 20 years. A prescriptive right cannot be obtained over government land (such as the National Forest).

Sometimes, when a parcel is separated from a public road by sale of land between the road and the parcel, an implied easement may be created to access the parcel across the land sold. A detailed title search of the parcel sold off, and of the adjoining parcels, may be needed to prove or disprove such a right. Since the right is only by implication, careful interpretation of the evidence in the public records is required.

Much time and effort has been consumed in defining both private and public prescriptive ways or in proving an implied right of access. The proponent in each case bears a heavy burden of proof. The cases are dependent on the peculiar facts in each instance. Unless all parties can agree, the facts in each case may need to be laid before a court in order that a decree may be obtained and recorded in the public records.

Some of the many facts which must be examined include: who pays the taxes; does someone live on the land; what type of use is being claimed; is the use daily or seasonal; was a claimed closure such that the user would have reason to know; was the closure by a permanent fence or by a temporary gate; does a practical alternative route exist.

Alternative access is one of the most overlooked factors. If there is no other practical or feasible means of getting to the property, regardless of the cost, the courts are more likely to find a means of access since, as noted, one attribute of ownership is access. If there is an alternative route, even though it might be expensive, the opponent may be able to block the access.

Even if existence of an access right can be established, there may be limitations. Proof of access by foot does not necessarily imply access by vehicle. Proof of seasonal access may not establish year-round access. Establishment of access by foot or by vehicle may not satisfy the building regulations of the jurisdiction where the land is located. Boulder County, for example, has stringent requirements for the construction of roads and driveways. A building permit might be rejected because of the steepness of the access road.

There is no easy "rule of thumb" that can be given to establish (or prevent) access. Each case must be examined and all of the facts, circumstances and history must be taken into account and weighed.

Unless the parties can reach a written agreement, the facts need to be established to the satisfaction of a court and a decree needs to be issued. Recording evidence of the facts alone will not satisfy the law. A competent attorney knowledgeable in the field should be consulted regarding access matters before property is purchased or promptly after questions are raised.

The foregoing is one of a series of information letters provided occasionally and without any regularity to clients, friends and associates of Karl F. Anuta. It is not intended as legal advice nor as a solicitation of legal business, but rather identifies a topic of current interest or concern.

Karl Anuta is a local Land Use Attorney. You may reach Mr. Anuta at:
1720 14th Street, Boulder, CO 80302 USA, or call 303-444-7660

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