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Law Offices of Ronald W. Rutz
Coloradoan Archives

June 16, 1999: Boating Rules; Real Property Consolidation without Taxes

Q: This is my first summer in Colorado and I am ready to go for it! But I heard that you can not just put a boat on many Colorado rivers without being considered a trespasser.

A: I thought I knew my Colorado water law, but boy did I get confused when I tried to confirm the "float" rules with a water law professor and a specialist in water law.

After further inquiry and research I reconfirmed that the rule in a nut shell seems to be that you can float on any river, stream, creek, etc. in Colorado. But if the water passes over private property, you can not touch bottom or the banks without trespassing.

So keep those tootsies in the boat, hope that you do not run aground, run out of water, or capsize, and do not even think about heading to the bank for a picnic or going to the bathroom (no, the latter probably would not be considered an emergency which is an exception to the no trespass rules). And I suppose if you are unlucky enough to get caught on a long stretch of water that runs through private property and you can not scamper out as the current takes you under any roads, you might have to float on and on toward the horizon because there is no place to legally exit. Wasn't there an old folk song about a man named Johnny and the MTA or BMT or whatever? Anyway, the point is that your trip could be longer than you planned. Seriously though, if a law professor who is paid to teach this stuff has no clue and if a lawyer who is paid to litigate these issues has at best only a fuzzy focus, do not just rely on this column alone but please confirm with your own lawyer what his or her thoughts are before you "go for it."

I was also asked several times to remind you that you may be required to obtain a permit and have your craft inspected in certain areas and even on public water there are some stretches where any type of craft is prohibited.

Finally, on a personal note, be careful. The water you are on, especially higher up, may suddenly in part or in total be diverted into siphons or tunnels. Very dangerous!

Q: We own two pieces of real property besides our house. One has a very large mortgage and the other is almost debt free. Can we sell the one with the high equity and then without paying taxes use the proceeds to pay off the mortgage on the other?

A: I wish I got a tax deduction for each time this question was asked! The normal rule is that you can not roll over the money into real property presently owned, just to consolidate equities. But do not hesitate to get a second opinion and share with me any good news that pops up. You can have a tax free transfer for newly acquired real property using a so-called 1031 exchange (with the closing on each property held at the same time) or a "starker" exchange (closing at a later time with the first closing's proceeds held in escrow), all as explained in several prior columns.

Q: What happens if the original Will can not be found?

A: The presumption is that if an original of a Will can not be found, the Will has been revoked. But if a copy exists and if you can convince a Judge that the Will was not revoked but due to circumstances (such as a house fire which probably destroyed it and other documents) or the lack of examples where the deceased acted as if he or she had revoked the Will (e.g. statements to others as if the document existed), then a copy can be admitted as the best evidence of the original. Thus, your attorney normally keeps a copy and some people occasionally give a copy to one of the children or the back-up personal representative.

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