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Law Offices of Ronald W. Rutz
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May 15, 2000: Trusts and Owning Property in 2 States; Trail Bisecting Rural Property

Q: In your last column you wrote that if a person dies owning real estate in two different states and if the probate laws are not as "user friendly" in the other state as in Colorado, then a living trust might become a must. But do not most states have a quick and inexpensive proceeding to settle matters if probate has been started elsewhere and only real estate is involved? I am certainly no fan of living trusts, having worked with them over the years.

A: An often mentioned reason for doing living trusts is to avoid double probates if a person dies domiciled in one state owning real estate located in another state. But as someone who has been in the "trenches" with you over the years, I agree with your general observation.

But since laws vary so much from state to state, nothing should be taken for granted. For example, in most states the technique of putting things in joint tenancy is used to avoid probate. But believe it or not, one state I deal with requires a court proceedings and a hearing to transfer joint tenancy property!! Go figure. Thus, it is still wise to check with an attorney in the sister state where the real property is located to determine the procedure and the cost for the ancillary probate.

Q: I am buying 90 acres located in the hills west of Fort Collins. There are only two building sites on the property but it looks like some kind of trail or path runs through the middle of both. Nothing appears on record, the trail appears to have been unused for years, and the realtor says it has been abandoned but can not produce proof. What do you think?

A: Even if nothing is noted in the "chain of title" identifying this easement or right of way, a buyer has a duty to inspect the property and is on constructive notice what a reasonable person would observe. The seller has a duty to disclose these kinds of things but often honestly may not know.

Many of these old trails cross and recross our hills and mountains to the west, forming a spider web pattern. They once were used for hauling wood, mail, or supplies, or maybe driving cattle, as public or fire access, and even hauling stone. One such path passes under several prominent downtown buildings here in Fort Collins and caused much chagrin and even consternation when its legal existence was pointed out after at least one of the buildings had been built, or so the story goes.

Most have indeed been abandoned, but non-use (unlike water non-use) does not raise a strong presumption of abandonment. The issue is one of intent.

And adverse possession, which must continue for 18 years, will not run just from the previous owners' possession or use of the 90 acres. There needs to be hostile, open, and continuous actions to deny the right to use the path or road. The existence of a fence may be important, or on the other hand, may not be enough, given the big picture. A locked gate across the path may have more weight than a fence crossing the path. But the issue is what was the intent and did the fence meet the above mentioned elements giving rise to adverse possession. For example, were the fence and gate put up and proclaimed to the world to prevent the use of the trail, or was the real reason to keep animals in or out? It becomes a question of fact.

The scary thing would be for you to build and then have the easement owner show up and demand the use to which he or she claims entitlement.

There is a continuous legal tug of war going on with easements. On one hand easements are defined strictly to time, area, and use. Anything beyond the defined right is infringing on someone else's underlying residuary property rights. But times change, so for example, easements for herding animals on foot might very well be construed to include horse riding, then buggy use, then farm equipment, maybe even car traffic, etc. I have even been involved in several disputes where a developer tried to argue that the trail access was intended for the use of the property which was being "benefited" by its existence. So a hundred and twenty-five years ago driving cattle back and forth two times a year was the then intended use and need, but today letting families use their 40 acres to live or recreate on is the "modern" use of the property.

So be careful and do your homework. But even then you might have to make a decision based on chance, not on certainty. And ultimately to clarify the property rights involving the path or trail, a quiet title auction might be needed.

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