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CLASS OUTLINE: LAND STEWARDSHIP 202


1.         INTRODUCTION TO RURAL LAW

a.          Know the facts about what you own/have purchased (real estate rights; boundaries; easements; access; claims of others; fence lines; water rights).

b.          Avoid unnecessary confrontations; reach a reasoned agreement, if possible; particularly on neighbor-neighbor disputes.

c.          If litigation is necessary, get fully prepared to go to trial, but make formal efforts to settle, before, during or after hearing/trial.

2.         LEGAL ENTITIES IN COLORADO.

a.          Agriculture as a high-liability activity.  Large animals, heavy equipment, water bodies, fences.

b.          Corporations, LLC, Partnership.  General recommendations that I make to clients.

3.         PERSONAL PLANNING.

a.          Ranch Maintenance and Management (written contracts)

b.          Protecting access rights, boundaries, water rights.

– Number one, know what rights you have.

– Number two, know how you can lose your rights. e.g. adverse possession is generally a period of 18 years; water rights must be used, or can be construed as having been abandoned.

c.          Estate Planning.

– In context of farm or ranch that you want to pass along to children or family, there are a number of steps that can be taken to protect this ability.  For example, family partnerships, lifetime transfers, conservation easements, family businesses, etc.  These efforts can be critical to preserving this property for heirs, especially in periods of escalating land values.

d.          Ownership.  Review of plats, boundaries, title commitments.

– If you have no survey, consider having one done.  If there are known boundary issues, contact neighbor and resolve.  If there are items on title commitment that are of concern, make inquiry and resolve.  Important for dealing with neighbors, for dealing with government, for dealing with sale of all or part, for dealing with owners of mineral interests, etc.

e.          Protecting agriculture tax status.

Know the definitions and the rules.  Then, be careful to comply.  Discuss County efforts 10-12 years ago; litigation; attitude since the litigation.  (Colorado Revised Statutes, Sec. 39-1-102, “Agricultural land”, “Farm” and “Ranch” defined; recent amendments (House Bill 11-11-46).

f.           Protecting rights of use (building, activities).

– As County becomes more urban, county’s planners come up with changes to zoning resolution that may impact use of private property.  For example, limits on ridge-line development were a major issue for a couple of years.  Secondary units and the related rules continue to be an issue.  Land preservation subdivisions and the related rules may impact owner directly or indirectly.

g.          Conservation Easements.

– Describe and explain how they come into being.  Describe the basic steps to be taken, and the basic options.  Describe the short-term and long-terms impacts.  Discuss/provide information on where to get more details.

– Discuss that fact information is critical to establishing a conservation easement.  Here, not only are boundary lines critical, but also knowledge about water rights and mineral rights.

– Practical:  Those conservation groups which are active in this region tend to be cooperative and mutually supportive.  However, all have their standard form easement, which, as expected, tends to be very restrictive.  The fact is that where there is any level of “gift” involved, the organization will negotiate terms.

h.          Mineral Rights.

– In Colorado, mineral rights are severable from the surface rights of real estate.  In some cases, this has occurred.  For example, on my ranch property, my company owns the surface rights; the State of Colorado owns the mineral rights.

– On some properties, a past owner may have retained the mineral rights, or may have retained a one-half interest in the mineral rights.  A later owner may have retained the other half.  However, mineral rights are not cleanly traceable in the land records.  So, a title company may note that certain mineral interests were reserved, or conveyed, by a previous owner, but the title company will not insure that you are receiving mineral rights, as part of a title commitment.

– Historically, not a lot of issues/disputes in Routt County.  However, with the energy development activities, there have been serious issues between rural property owners and energy development interests – particularly in New Mexico and in Wyoming.  In Colorado, these issues have started to arise in Garfield, Rio Blanco and Moffat Counties.  We are now seeing these in Routt County.

4.         DISPUTES.

a.          Fences and Gates.  The basic law; the typical dispute.  (Colorado Revised Statutes, Sec. 35-46-101, et seq.)

b.          Covenants and Easements.  Restrictions that are “recorded.”

– Back to your title commitment.  Typical provisions/restrictions will relate to access, to road maintenance, to utilities, and to water rights; some relate to permitted structures, require architectural review.

c.          Water Rights.  Discuss fact that water rights are established, ultimately, by Court Decree.  Property owner can make use of the water first; then file for rights.  Alternatively, owner can file first, and then develop the water rights that were established.  Discuss Colorado Supreme Court case; ramifications.

d.          Dispute resolution.  Court or alternative dispute resolution (ADR).

5.         ADDITIONAL INFORMATION SOURCES.

a.          A Guide to Rural Living & Small Scale Agriculture, Routt County

b.          “ktlaw.com” publications page

c.          “cobar.org” (Colorado Bar Association)

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