Denver, CO asked in Real Estate Law for Colorado

Q: What if neighbor violates terms of an easement in CO?

Our neighbor has planted trees and bushes directly over our sewer lateral, which crosses his property on an easement. The easement agreement says, "the covenants and agrees (i) not to construct, install or maintain any structures or fixed improvements within, over or upon any portion of the Underground Utility Easement Area, and (ii) not to plant, install or maintain any trees, bushes or other landscaping features or materials within, over or upon any portion of the Underground Utility Easement Area that could unreasonably interfere with the exercise of the Underground Utility Easement by ." I'm concerned that the roots of the new trees could impinge on the sewer line, and that I might be responsible for the expense of taking down and replacing the trees if necessary for future repairs. Is there anything I should do now, or do I need to wait until a repair situation arises to clarify the meaning of "unreasonably" and determine who is responsible for which expenses?

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2 Lawyer Answers
Donald C Eby
Donald C Eby
Answered
  • Castle Rock, CO
  • Licensed in Colorado

A: You don't have to wait for the trees to damage your lateral lines. You can demand that they be removed now. If your neighbor refuses your request I recommend that you contact an attorney who can send the neighbor a demand letter outlining the law supporting your position and the additional expense he will endure should you be forced to bring a lawsuit to protect your rights.

James Alan Greer
James Alan Greer
Answered
  • Boulder, CO
  • Licensed in Colorado

A: Dear Easement Grantee: On the face of it, your description of the activities by the servient property owner seems to be a violation of the Easement Agreement, to wit: "not to plant, install, or maintain any trees, bushes . . . over or upon any portion of the . . . Area". Easement areas are expected to require clearance for possible future excavation and repair. if there are trees placed in a manner that would block the accessibility of the sewer lateral (for repair purposes) then the trees can be considered "unreasonably interfering". It may be the case where a civil engineer could opine as to the location of the sewer line in relationship with the trees, on your behalf, and so inform the neighbor. Regardless, you would be well advised to send certified NOTICE to the neighbor, citing the easement language, and indicating that they will hereafter be responsible for any costs to remove trees/bushes in the future as the need for access to the sewer line shall arise. They should also be "encouraged" to transplant the larger specimens away from the sewer lateral, so that future access is maintained.

JIM GREER is an attorney licensed to practice in CO and CA and has specialized in real estate transactions for the past 30 years; nothing herein shall be construed as the offering of legal advice insofar as Mr. Greer is not in an attorney-client capacity with the inquiring party.

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