By: Luke Mecklenburg

Last year, I posted regarding the Colorado Court of Appeals’ decision in Woodbridge II, which concluded that the “adverse use” element for prescriptive easement claims only requires the claimant to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2.  Thus, Woodbridge II concluded, the claimants acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context.  Id.  That decision was up for review by the Colorado Supreme Court at the time of my prior post.  It has now been affirmed, thereby settling an arguable appellate decision split created by Woodbridge IISee Lo Viento Blanco, LLC v. Woodbridge Condo. Ass’n, Inc., 2021 CO 56 (“Woodbridge”).

“Like the division below, and for much the same reasons,” the Colorado Supreme Court affirmed in Woodbridge “that under Colorado law, a claimant’s acknowledgement or recognition of the owner’s title during the claimant’s asserted prescriptive period does not interrupt the prescriptive use or undermine the claimant’s adverse use.”  Woodbridge, ¶ 2.  Writing for a unanimous court, Justice Gabriel’s opinion agreed with the Court of Appeals’ reasoning “that although Woodbridge recognized that it did not hold title, no evidence indicated that it had acted in subordination to the owner’s title.”  Id. ¶ at 13.  The Court further agreed with Woodbridge II’srejection of Lo Viento’s “permissive use” argument because “the permission offered … was conditional and Woodbridge never agreed to any of the conditions set forth therein.”  Id.  On that basis, Woodbridge confirmed that “a claimant seeking to establish a prescriptive easement need not show that it asserted exclusive ownership of the property during the prescriptive period,” but only “that its use was without permission or otherwise unauthorized and that it interfered with the owner’s property interests.”  Id. at ¶ 23.

The Woodbridge opinion acknowledges that the presumption of adversity afforded in prescriptive easement cases can be rebutted by a showing “that the claimant’s use was permissive at any time during the statutory period” or “that the claimant’s use was made in subordination to the property owner,” but it agreed with the Court of Appeals that “the mere recognition of the landowner’s title … is not subordination.”  Id. at ¶¶ 24-25.  Instead, “[s]ubordination requires that the user act with authorization, express or implied, from the landowner, or under a claim that is derivative from the landowner’s title.”  Id. at ¶ 25.

Applying these legal principles to the facts of the case (see my prior post), Woodbridge confirmed that: (1) “the mere fact that Woodbridge sought permission (which it did not ultimately receive) to landscape the disputed parcel did not interrupt its adverse (i.e., nonpermissive) use;” and (2) an offer to purchase the disputed parcel during the statutory vesting period did not cut off prescriptive use because “a claimant need not show exclusive ownership in the context of a prescriptive easement.”  Id. at ¶¶ 28-29.  “And [as the Court noted,] this makes logical sense: a claimant seeking an easement does not necessarily disagree that the purported servient landowner holds title to the property.”  Id. at ¶ 29.

Based on these conclusions, and in line with the Court of Appeals’ decision in Woodbridge II, the Woodbridge court held that “[u]nder Colorado law, a claimant’s acknowledgment or recognition of the owner’s title during the claimant’s prescriptive period does not interrupt that prescriptive use or defeat the presumption that the use was adverse for purposes of establishing a prescriptive easement.”  Id. at ¶ 33.  This decision provides clarity on the difference between “adverse use” in the adverse possession context and “adverse use” for prescriptive easement claims.  It also provides a stark reminder that it is a best practice to assert a claim for a prescriptive easement as an alternative to any claimed adverse possession.