Is Adverse Possession Really An Obscure Boulder Real Estate Move?

Much of what we’ve heard about the “land grab” by Richard McLean and Edith Stevens of their neighbors piece of Boulder real estate has suggested that this action used a piece of obscure and arcane real estate law.

While it may be rare to see it in action, there shouldn’t be this misconception that it’s all that unique. I think the uproar over all this focuses on what appears to be an exaggeration and perhaps misuse of the intent of the adverse possession law. As I understand it, the perception by most of us is that the reason for allowing someone to take ownership of another person’s land via adverse possession is to provide an avenue for those making the best use of the land to do so.

What also seems apparent to me is that some people in the local community and in fact some neighbors in that area feel that that Don and Susie Kirlin felt that they had been doing what they basically needed to do to fulfill their obligations as property owners such as paying taxes when due…

It’s been escalated as street protesters and controversy makes for good media hype. I think though that many locals feel that McLean, being a former judge and having apparent influence to the local legal community, may have taken unfair advantage of their neighbors. Whether McLean and his wife actually intended to do anything nefarious or not, it’s easy for homeowners to look at this from the outside and feel anxious about finding themselves and the ‘bad end’ of a similar situation.

Here’s some specifics on how adverse possession works in general:

Traditional common law provided a method for someone to obtain title to land through use. The common law rules for adverse possession have been codified under both federal and state statutes. A typical statute allows a person to get title to land from the actual owner simply by using the land, out in the open for all to see. For example, your neighbor built a fence on your land with the intention of taking the property, paid property taxes, and you knew about it but did nothing. If this continued for a period of time set by state law, your neighbor may be able to claim this property as his/her own. The theory is that, by not disputing your neighbor’s use of your property through a lawsuit, you, as the actual owner have abandoned your rights to the property. There are several elements needed for adverse possession to result in title:

The length of time required for adverse possession in title varies – it could be as short as a few years or could run for twenty years or more. (In Colorado it’s 18 years). Typically public entities must establish a longer period of possession than individuals. Some states have adopted a rule which requires the adverse possessor to pay taxes each year on the land.

The possession must be open for all to see.

The possession must be exclusive to him or her (e.g., the fence in the above example, a driveway, road, etc.)

The possession must be hostile to the actual owner of the land.

To gain title to land through adverse possession requires strict compliance with the law, but can have dramatic impact upon land ownership rights.

An encroachment could result in title to your property being transferred to an adverse possessor. Under these circumstances, you might have to bring a lawsuit for trespass in order to prevent your neighbor from getting title to your land through adverse possession.

If you own land, it is important that you do not “sleep on your rights” since you could lose ownership of the land.

This synopsis on the local situation from a recent Daily Camera article:

23 years ago Don and Susie Kirlin purchased two undeveloped lots in Boulder’s Shanahan Ridge, located in the 2000 block of Hardscrabble Drive. They were considering whether to build a home on their property or sell one or both lots.

According to court records, the Kirlins left the property vacant and unattended while the homeowners next to the lot, Edith Stevens and Richard McLean, created two dirt paths through the property to access their own backyard “virtually every day” for almost 25 years.

Stevens and McLean said in court that they knew the land was owned by someone else, but they used it anyway for access to their yard, to host parties and to store a wood pile.

After a dispute erupted among the neighbors over a fencing issue, McLean, a former judge, hired Boulder attorney Kimberly Hult to sue the Kirlins for ownership of their longtime pathway by taking advantage of adverse possession.

The doctrine, incorporated into Colorado’s Revised Statutes, essentially states that if a person occupies the land owned by another person for long enough, without being challenged or given permission by the owner, the land becomes the property of the person most attached to its use.

In Colorado, the statutory time a property must be occupied before asserting adverse possession is 18 years, and even then, squatters have a heavy burden to prove that they meet all the requirements of the law. In the case of McLean and Stevens, Boulder District Court Judge James C. Klein found the couple had taken possession of their neighbor’s land in an “actual, adverse, hostile, under right of claim, exclusive and uninterrupted” manner — consistent with the language of the law.

The Kirlins argued in court that they have been proper stewards of their land, paying property taxes and homeowners’ association fees since first purchasing it. They said they never noticed someone was encroaching on the lot.

Hult said McLean and Stevens have faced a barrage of “negative” letters and other reactions from Boulder residents since details of the case became public, including dozens of critical comments posted on the Camera’s Web site, www.dailycamera.com.

Denver business and commercial law attorney Andrew M. Toft said Friday that homeowners should take notice of the case because use of the statute comes up regularly in property disputes.

“Adverse possession has been around a long time, and it’s not a theory of law that is questioned,” Toft said. “If I have a fence that goes 2 feet onto my neighbor’s lot line, and it stays there for 17 years … at the end of those 17 years, conceivably I could go to court and (argue), ‘Your honor, I own this land now.'”

He noted that the Kirlins would have been within their rights to call authorities about any trespassing on their property, but because they did nothing, the adverse-possession clause prevails.

Toft said he sees the law used more frequently in rural areas, where boundary disputes span dozens or even hundreds of acres. However, he warned that some property owners can be caught off-guard by the particulars of the law.

“Suddenly, it can become an issue,” Toft said. “I don’t think it’s something that your average layperson is going to have a lot of experience with.”

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