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NorthernColo

Can my property usage rights, and ability to conduct business, be prevented by neighbors doing the same thing?

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I share a property easement (noted in Decree Quieting Title from 1969) for a fire road (which starts on my property, borders several neighbors properties, and then connects to the main county road) with a few neighbors.

 

For last three years (since my wife and I purchased the property), we’ve very infrequently used access to my property from the fire road for an equine therapy business (less than 30 times per year). Now, these same neighbors have initiated a ‘cease and desist’ action against us (served today), seeking to prohibit me from using the road for business purposes, but still allowing personal access.

 

Two of these neighbors also have businesses which use the same road; one very infrequently (like us), and one much more frequently (multiple times each week). Can they legally prevent me from accessing the road for business purposes, while two of them still do the same thing (one also equine related, the other involving car repair, etc.). I don’t believe so, which has led me to seek out some answers. Our small town has no attorneys, so I’m trying to do some research on the issue, as I consider all of my options.

 

Regarding the Decree Quieting Title (can upload the 3 pg document here, if necessary): it gives us all equal access, granting no one superior or inferior rights over another. The decree specifically states that we (our property, as well as the other property owners noted in the decree), “shall jointly have the right to use and enjoy said right of way easement...pursuant to their accrued and vested rights prior to the institution of this action, it being the intention of the parties that their stipulation to the entry of a Decree quieting title to said easement shall not enlarge or limit the vested rights of the parties prior to the institution of this action.”

 

I’ve been searching for several days now, but can’t find any definitive information anywhere online to help... any assistance or redirection would be genuinely and greatly appreciated!

 

Thank you.

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The basis for the neighbor's latest actions are a matter of simple selfishness.

About two years ago, we were invited to gather at one of the neighbors homes, under the premise of discussing "road maintenance". When we arrived, it was clearly an "ambush"... the care and maintenance of the road was clearly not the primary topic of conversation. Only after more than an hour of borderline confrontation, one of my neighbor's said that if there was any way of preventing us from using the road, he would do that... yet stated that he'd discussed this with his lawyer, and he learned that he could not do so.

Methinks this is another effort to infringe/restrict our vested property rights.

One more detail: after discussing the situation with our property's previous owner, I learned that our property had been accessed intermittently, but regularly, from the road in question since at least 1976 for personal and business (horse training purposes). This predates the construction of 3 of 4 neighbor's residences, and the 4th neighbor is actually on a parcel that was originally a part of our property, at the time of the Decree.

 

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The decree refers to and describes the legal description of the easement but does not address the use of the easement.

 

The section you referred to is as follows when quoted fully:

 

“Plaintiffs and Defendants , their grantees, licenses, invitees, heirs, executers, administrators and assigns shall jointly have the right to use and enjoy said right of way easement  forty (40) feet in width pursuant to their accrued and vested rights prior to the institution of this action, it being the intention of the parties that their stipulation to the entry of a Decree quieting title to said easement shall not enlarge or limit the vested rights of the parties prior to the institution of this action.”

 

It says "use and enjoy" but doesn't say how, only that the decree "shall not enlarge or limit the vested rights...prior to the institution of this action."

 

So, my question is, what were the vested rights of the parties prior to the institution of this action?

 

In other words, where is the original recorded easement document and what does it say?

 

You're going to have to answer that question before you go any further.

 

How people have been using the easement in the past, regardless of how much or how little, is not as important as what the easement document says.

 

If the original easement says "ingress and egress" without modification then anybody who says boo to business use can be ignored. But if it expressly (or even impliedly) limits "ingress and egress" to residential purposes or non-commercial purposes then any owner can seek an injunction against any other owner to prevent business or commercial use.

 

 

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If you want a reliable opinion about what your neighbors can and cannot do in terms of your and their use of the easement, you can't get that from anonymous strangers on the internet.  One of the persons who responded previously is a lawyer and one isn't, and neither are in Colorado.  I'm a lawyer but not in Colorado.  There is one lawyer who posts here regularly who I believe previously was (and may still be) licensed in Colorado.  To get a reliable opinion, you'll need to take the relevant documents to a local real estate attorney.

 

The question is whether it's worth your trouble to do that at this point.  You told us that your "neighbors have initiated a ‘cease and desist’ action against [you]," but what does that mean?  Did they simply send/serve you with a cease and desist letter?  Or did they file a lawsuit that seeks an injunction?  If all they did was send you a letter, did they send it themselves, or did a lawyer send it on behalf of them?  If it was merely a letter and you're so inclined, please upload it, but please remove all identifying information.

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I read the court order but found nothing in it about personal use only of the right of way.  Have your neighbors or their attorney cited anything to you that would indicate only personal use of the right of way is permitted.  BTW, the fact (?) the other property owners may be using the right of way for business doesn't grant you the same right. It really just means you can similarly enjoin them from doing so if it is improper.

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Here's the redacted Cease & Desist letter. Its clear that the attorney generating the letter is not accurately addressing the historical facts; hopefully, it was ignorance or miscommunication on the part of the Complaining parties, rather than intentional withholding or misinformation by the Complaining parties. I have an abundance of documents (including time-lapse photos, and affidavits from previous owners) directly refuting the "no previous historical access" from the Subject Road, as well as documents showing that two of the Complaining parties also have business activities occurring on their properties throughout the year, while two of them have seasonal business activities. Despite the comments in the letter, our minimal business activities are not the only ones occurring on the disputed road.

I've previous paid for road repairs myself, as well as contributed to resurfacing effort in the past; I've even offered (in writing) to help repair the bridge, but the Complainants continue to ignore my messages and not involve me in the efforts.

Unfortunately, I cannot afford an attorney. Recent family matters (long-term illnesses, with subsequent medical and burial bills) essentially wiped out our savings. So, I'm doing my best to figure out how to deal with this sad state of affairs.

Redacted C and D Letter - Pg 1 of 3.jpg

Redacted C and D Letter - Pg 2 of 3.jpg

Redacted C and D Letter - Pg 3 of 3.jpg

Redacted C and D Letter - Pg 1 of 3.jpg

Redacted C and D Letter - Pg 2 of 3.jpg

Redacted C and D Letter - Pg 3 of 3.jpg

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49 minutes ago, NorthernColo said:

Unfortunately, I cannot afford an attorney

 

Then, unfortunately, you bend over and take it. Stop doing what they tell you to stop doing. Find another way to conduct your business in and out of the property. The reality is that you don't have any money to defend yourself nor do you have any money to litigate against others that you say are also using the easement for business.

 

Reality is a harsh mistress. In law, people with no money are often at the mercy of those who have lots of it. You can't even afford to run a bluff by demanding he produce the easement document, though you are welcome to try. Or scour the county records to see if you can come up with it.

 

I'm not saying I agree with him. I wouldn't say one way or the other without reading the easement document. But if you get served a summons and complaint seeking injunctive relief, you're going to lose if you don't have an attorney. This guy is sharp and will run rings around you in a courtroom.

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Respectfully, I don't believe that I have to "bend over and take it", nor do I need to "bluff". I've represented myself Pro Se out of necessity before... and am not doing so now by choice. There appears to be a preponderance of evidence directly refuting the claims in the C&D letter.

As the historical paper trail of usage on this road demonstrates both personal and business access of the property off of the subject road, by myself as well as the others, why must I relinquish my rights to others who have the same measure of rights as me? I am doing nothing different than most of the others (actually, all but one).

 

As I mentioned in a previous post, the original "easement document" is the Decree posted here; there's nothing more to "dig up".

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1 hour ago, NorthernColo said:

Unfortunately, I cannot afford an attorney.

 

Then you have two basic choices:  (1) give up; or (2) tell your neighbors, through their attorney, to pound sand (but do so politely) and continue what you've been doing.  If you go with option #2, you'll find out if your neighbors are serious about taking the matter to court.  If they take the matter to court and you still can't afford to hire an attorney, then you'll have to try and win a gun fight with a rubber knife.

 

 

4 hours ago, RetiredinVA said:

BTW, the fact (?) the other property owners may be using the right of way for business doesn't grant you the same right. It really just means you can similarly enjoin them from doing so if it is improper.

 

There is an equitable principle (that I assume applies in Colorado) that says something like, "he who seeks equity must do equity."  As applied here, it would mean that the OP's neighbors who might seek equitable relief against the OP may be unable to get it because they are doing the same allegedly objectionable thing that the OP is doing.  If I were representing the OP, this is definitely something I would research after ensuring I had a full grasp on the relevant facts.

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Thanks for the input, folks! Of course, I'd rather not have to have an ugly confrontation with my neighbors...

If the "business activities" were simply "goods and services" akin to say, auto repair, it would not be so reprehensible. However, the "business" is allowing a Professional Mental Health Counselor to use our horses (on a private residence within the boundaries of a national forest) to provide critically-needed therapeutic services to children that are victims of traumatic events.

Life-changing stuff goes on here, for sure... "folding" or "bluffing" is not an option.

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