Elizabeth, CO asked in Real Estate Law for Colorado

Q: Does an express easement allow use over a private road that is owned by adjacent landowners?

A landowner has 60 acres he wants to subdivide into a minor development. It has been zoned AG for 21 years. The other landowners own and maintain the private road which he uses for access. He wants to have the property re-zoned to AR for a subdivision. The road is not county maintained. The other landowners own the property that the road is on and the land on the other side of the road that adjuncts his property. Can he do this even if all the "road" owners are against it? The other property owners have no issue with one house but do not want a new subdivision using the private road as it will overburden the easement (road). The AG landowner has never provided any maintenance nor has any intent to help maintain the road after the subdivision is built.

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1 Lawyer Answer
John Roland Lund
John Roland Lund
  • Carbondale, CO
  • Licensed in Colorado

A: As a condition to approval of the rezoning and subdividing, the planning department and/or zoning officials will have to assess whether there is adequate and legal access to the proposed lots. In addition to a primary access point, most development plans also must have a secondary access for emergency vehicles. His rights to use the private road are limited to what is defined in the written easement agreement for the road, if there is one, and by his prior use pattern if the easement is just implied and not written. So no, he cannot simply expand his use of the road from that of a single parcel of agricultural land to one with many residential users, unless there is a written agreement so stating. He can only do that with the agreement of other parties who hold interests in the easement and in the surrounding parcels. I would not expect the government to approve the proposal without the right to access being clearly established.

This will be hashed out through the planning and zoning process which varies from one county to another. However, legal representation for the objecting landowners would be advisable. At the very least, a lawyer could investigate and verify the facts you state and then write a letter on behalf of the other landowners.

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