The Colorado Supreme Court recently upheld a lower court’s holding that a condominium association that regularly used a parcel of land that abutted the association’s property had acquired a prescriptive easement on the parcel. See Lo Viento Blanco, LLC v. Woodbridge Condo. Ass’n, Inc., 489 P.3d 735 (Colo. 2021). In 1975 L.R. Foy Construction (“Foy Construction”), owned by Lyle Foy (“Foy”), built condominiums on and conveyed a large parcel of land to the Woodbridge Condominium Association (“Woodbridge”), but did not convey a smaller parcel of land (“the disputed parcel”) that sat between the conveyed parcel and a gravel road. From then until at least 2012, Woodbridge used the disputed parcel for different purposes, including using it to access a pedestrian bridge, skiing across it, and maintaining the grass. In 1991, Woodbridge asked Foy if Woodbridge could plant trees and shrubs on the disputed parcel. Foy replied that Woodbridge could, as long as Woodbridge would not maintain any claim to the improvements it would install. Woodbridge did not reply, and instead offered Foy $10,000 for the disputed parcel. Neither Foy nor Foy Construction replied to this letter. Foy Construction then sold the disputed parcel to Lo Viento Blanco LLC (“Lo Viento”) in 2010, and presented Woodbridge with a plan to build on the disputed parcel. Woodbridge objected to these plans, and instead filed suit to establish that it owned the disputed parcel or, in the alternative, that it had acquired a prescriptive easement over it. The trial court held that Woodbridge had acquired a prescriptive easement over the disputed parcel and the Court of Appeals affirmed. Lo Viento appealed to the Colorado Supreme Court.

The Colorado Supreme Court agreed with the Court of Appeals, upholding Woodbridge’s prescriptive easement. The Court noted that to obtain a prescriptive easement, one must show that their prescriptive use is “1) open or notorious, 2) continued without effective interruption for the prescriptive period, and 3) the use was either a) adverse or b) pursuant to an attempted, but ineffective grant.” The Court noted further that a prescriptive easement claimant that shows that it has possessed the easement for more than the statutory period is entitled to a presumption of adverse use. Lo Viento argued that it could rebut the presumption that Woodbridge’s use of the disputed parcel was adverse because, during the prescriptive period, Woodbridge (1) sought permission in 1991 to landscape the property at issue; (2) sought to purchase the property in 1992; and (3) acted in subordination to Lo Viento’s title by allegedly continuing the use that Lo Viento’s predecessors in interest had authorized. The Court rejected each of these arguments. First, the Court said that Woodbridge’s seeking permission to use the parcel did not interrupt its nonpermissive use, as its request for permission was denied. Second, as to its attempt to purchase the land, the Court held that this could not defeat the claim because exclusive ownership was not required to establish the prescriptive easement. Finally, the Court found that Woodbridge had not acted in subordination of Lo Viento’s title, noting that Woodbridge’s use of the property was not permissive, and that a claimant’s unsuccessful attempt to purchase property does not establish that its subsequent use is subordinate to the owner’s title. The Court concluded that because Woodbridge’s recognition of the owner’s title during its prescriptive period did not interrupt that prescriptive use, and because it had established the other elements, Woodbridge had established a prescriptive easement.