Written by attorneys · grounded in primary & secondary sources — see below
An intended servitude that fails formal creation requirements but whose terms, when followed by long-continued use, support the creation of a prescriptive servitude.
Sources & Authorities· 3 sources
Select any source to read its text and confirm it supports the definition.
Restatements
Casebooks
How it applies
Common Examples
2
Unsigned Term Sheet Supports Access Right
Ideal Solutions operated solar panels on its hillside for fifteen years and drove service trucks daily along a dirt track across Island Manufacturing's adjacent ranch. The companies had exchanged an unsigned term sheet describing an access and utility easement that was never executed or recorded. When Island Manufacturing later blocked the track, Ideal Solutions continued its use and prevailed on a claim that the long enjoyment under the defective term sheet created a prescriptive servitude.
Unrecorded Agreement Creates Prescriptive Access
Ibrahim Iqbal's manufacturing plant sent pallets daily across a narrow strip on Idina Iverson's neighboring parcel via an overhead conveyor installed after an unsigned draft easement was placed in a file cabinet. The draft was never signed or recorded, yet Iqbal maintained and operated the conveyor openly for nearly twenty years without objection. When Iverson later sought to enjoin the use, the court recognized a prescriptive servitude because the continued operation followed the terms of the intended but imperfectly created grant.
Lobato v. Taylor71 P.3d 938 (Colo. 2002) (en banc)
Common questions
Frequently Asked
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How does an imperfectly created servitude differ from adverse use in creating prescriptive rights?+
An imperfectly created servitude arises when parties intend a formal grant but the document is defective, such as unsigned or unrecorded, and the claimant uses the land consistently with that intended grant. Adverse use instead requires hostility without permission. The Restatement treats both categories as qualifying prescriptive uses that ripen into servitudes after the statutory period.
Supporting sources
Does long use under an unrecorded letter or term sheet create a prescriptive servitude?
Yes. When parties sign an informal letter or exchange an unsigned term sheet intending a continuing right of access and the claimant uses the land openly and continuously for the prescriptive period, the use qualifies as pursuant to an intended but imperfectly created servitude. Courts recognize the resulting prescriptive servitude even though the writing never satisfied formal conveyance requirements.
Supporting sources
Must the use be adverse when it rests on an imperfectly created servitude?+
No. The Restatement expressly separates the two categories. Use made pursuant to the terms of an intended but imperfectly created servitude supports a prescriptive servitude without proof of adversity or hostility to the owner.
Supporting sources
What role does an old map or diagram play in proving an imperfectly created servitude?+
An informal map or site diagram that labels a route as a shared lane or proposed easement demonstrates the parties' intent to create a servitude. When the claimant later uses the land consistently with that label for the full prescriptive period, the use supports a prescriptive servitude even though no formal deed was ever executed or recorded.
Supporting sources
Real PropertyRights in real property · Easements, profits, and licensesUBEFoundational