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Adverse Possession Claims in Colorado

Lately, the term “adverse possession” has been cropping up with some regularity in the Colorado media. This long-standing legal doctrine is getting a lot of press due to a high profile case and some recent changes to the statutory framework that will go into effect July 1, 2008. This article provides a basic primer on adverse possession in Colorado and also presents a basic summary of the new law.

The Traditional Test
Through adverse possession, one may obtain title to another's real property (without paying for it) by using the property for a specified period of time in a way that conflicts with the true owners' rights. Smith v. Hayden, 772 P.2d 47 (Colo. 1989). A party claiming title by adverse possession must satisfy a six-prong test by a preponderance of the evidence. Proper v. Greager, 827 P.2d 591 (Colo. App. 1992). Under this test, a party must establish that his possession was (1) actual (2) adverse (3) hostile (4) under a claim of right (5) exclusive and (6) uninterrupted for the statutory period. C.R.S. § 38-41-101(1). In Colorado, the statutory period is eighteen years, Id., although there are some exceptions to this (see discussion, infra).

The first element of this six prong test is “actual” possession. Actual possession is generally defined as effective control over a definite area of land. Anderson v. Cold Spring Tungsten, Inc., 458 P.2d 756, 758 (Colo. 1969). Doing something as simple as erecting a fence may be sufficient “actual” possession to put the record owner on notice of an adverse possession claim and satisfy this element of the test. McKelvy v. Cooper, 437 P.2d 346 (Colo. 1968).

Under the second prong of the test, for use to be “hostile,” the adverse possessor must demonstrate an intention to claim exclusive ownership of the property. Anderson, supra. The hostility element has nothing to do with violence, but rather, the possession must be without the permission of the title owner. Id. The third prong of the test, being “adverse,” simply means that the possession by the adverse possessor is contrary or against the interests of the true owner. Id. For both the hostility and adversity elements, if the use of the land is with the permission of the owner then such use can never ripen into title by adverse possession regardless how long it continues. Segelke v. Atkins, 357 P.2d 636, 638 (Colo. 1960). Further, until some notification is given to the land owner that the possessor is now occupying the land adversely, that possession cannot be adverse. Miller v. Bell, 764 P.2d 389 (Colo. App. 1988). Whether possession is actual, hostile, or adverse is ordinarily a question of fact. Bd. of County Comm'rs v. Ritchey, 888 P.2d 298 (Colo. App. 1994).

Under the fourth element, an adverse possession claimant must prove that his possession is “under a claim of right,” which simply means that the possessor either makes the claim based upon constructive possession under color of title (e.g., an error in the legal description leading the claimant to believe it owns part of a neighboring property), or makes the claim based upon actual use and possession of the area of land at issue for the statutory period. Under the fifth prong of the statutory test, the possession must be “exclusive.” A sharing of possession with the record owner may defeat a claim of exclusivity. Further, such possession must be sufficiently open and notorious to have placed the owner on notice of it.

The sixth and final requirement of an adverse possession claim is that the period of occupancy be uninterrupted by entry or occupancy of the record owner. However, successive adverse possessors may join together to create the required eighteen-year period, a doctrine known as “tacking.” Lindquist v. Eisenmann, 290 P. 277 (Colo. 1930). That said, while successive periods of possession can be “tacked” together, that possession still must be continuous. Therefore, if permission to use the property is given by the true owner to the adverse possessor during the possession period, that period of adversity is interrupted and this final requirement of uninterrupted possession under the adverse possession test may not be met. McKenzie v. Pope, 33 P.3d 1277 (Colo. App. 2001).

There are also important presumptions to be aware of regarding adverse possession claims which exceed the scope of this article. For example, there is an initial presumption in favor of the record owner against adverse possession. Lovejoy v. School Dist. No. 46 of Sedgwick Cty., 269 P.2d 1067, 1070 (Colo. 1954)

As noted above, the time for adverse possession is generally eighteen years, although Colorado law permits adverse possession within seven years in certain cases. Such circumstances include where the possessor has “a connected title in law or equity, deducible of record.” This is generally interpreted as applying where the possessor is occupying the property under color of title and has paid taxes on the property; or where the possessor has color of title to vacant land (and not necessarily actual possession), but pays taxes for the requisite seven years. C.R.S. § 38-41-106, -108, and -109.

Regardless whether a litigant is suing to acquire title by adverse possession or defending against such a claim, the quality of evidence is key to a successful litigation strategy. Experienced counsel must locate witnesses with historic knowledge of the property, its reputed owners and users. In addition, litigants frequently must locate historic property records, maps, photographs, surveys and other historic documents to prove or defend against adverse possession. Rare is the case where a litigant can prevail simply relying on his or her own testimony.

The Now Famous Boulder Case
Last year Boulder became the focus of media and public scrutiny when Richard McLean, a retired district court judge and former Boulder Mayor, and his wife, Edith Stevens, sued to acquire a portion of their neighbors' lot through adverse possession. McLean and Stevens v. DK Trust and Kirlin, Boulder District Court Case No. 06 CV 982 (filed Oct. 4, 2006); Heath Urie, Details of Threat to McLean and Stevens Revealed, Daily Camera, March 6, 2008. The dispute began in October 2006, when McLean and Stevens obtained a restraining order against their neighbors, Don and Susie Kirlin, to stop them from building a fence along the dividing line between their properties. McLean and Stevens v. DK Trust and Kirlin, supra; John Aguilar, Hard Feelings on Hardscrabble Drive, Daily Camera , November 19, 2007. McLean and Stevens claimed that because they had been using one of the Kirlins' two vacant lots to access their backyard and had never been asked to stop, they had become the de facto owners of that land. McLean and Stevens v. DK Trust and Kirlin, supra. District Court Judge James C. Klein ultimately awarded McLean and Stevens about one-third of the Kirlins' lot. Id. The strong public response to this decision brought the doctrine of adverse possession to the attention of the Colorado General Assembly.

The 2008 Amendments to the Law of Adverse Possession
In the wake of this controversial land dispute, State Representative Rob Witwer and State Senator Ron Tupa co-sponsored H.R. 1148, 66th Gen. Assem., First Reg. Sess. (Colo. 2008) to modify the Colorado adverse possession statute. Heath Urie, “Ritter Approves 'Land Grab' Bill,” Daily Camera, April 26, 2008. Governor Ritter recently signed this bill into law effective July 1, 2008. Id. The bill, which garnered wide bi-partisan support among state lawmakers, requires that an adverse possessor believe in “good faith” that the land is actually his or her own. Id. It also raises the burden of proof in an adverse-possession case from a preponderance to “clear and convincing” and gives judges the power to make plaintiffs pay for any land they are awarded. Id.

Therefore, for cases seeking to establish title to real property by adverse possession filed after June 30, 2008, plaintiffs will face a steeper burden. In addition to proving the common law elements-the six-prong test discussed above-claimants will also have to present evidence proving they (or their predecessor in title) had a good faith and reasonable belief they are the actual owners of the property. The burden of proof to establish adverse possession claims has been raised from a preponderance of the evidence to clear and convincing evidence. Furthermore, even if such a plaintiff is victorious in court, under the new law, judges will have the discretion to award damages to the losing party for the loss of property and could even require the successful plaintiff to reimburse the loser for property taxes and assessments on the property for the prior eighteen years.

Copyright © 2008 Fairfield and Woods, P.C., ALL RIGHTS RESERVEDNational Law Review, Volume , Number 202
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About this Author

Craig Joyce, Litigation lawyer, Fairfield and Woods
Director

Craig D. Joyce is the chair of the firm’s Litigation Department and devotes his practice to civil litigation in state and federal courts and administrative agencies. He handles litigation matters at all levels of trial courts, arbitration forums and appeals courts.

Many of Craig's cases involve real estate litigation, including condemnation and foreclosure. He also represents a wide variety of litigants in many other areas, including partnership dissolution, automobile dealership law, trade secrets, government procurement bid protests, title insurance, class actions and probate...

303-894-4480
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