Adverse Possession is a method to acquire title to land that is owned by another through use. Examples of use might include a fence, driveway, footpath or even a structure being placed on the property of another party. The person claiming ownership must prove the following elements exist in order to have a case:
The possession must be OPEN and NOTORIOUS, that is it must be open for all to see. This includes the owner, even if he/she has never actually seen the possession.
- The possession must be HOSTILE to the actual owner, and must conflict with the owner's rights and interests in the property. The possession must also be EXCLUSIVE in use to the possessor.
- The possession must be CONTINUOUS and UNINTERRUPTED. For Colorado the statutes specify at least 18 years, and may also be combined with the same possession by a prior owner.
If this all sounds criminal (for some it may be), the legal theory is that by not disputing a neighbor's use of your property by way of a lawsuit, you, as the actual owner have abandoned your rights to the property, either right or wrong.
The Need for Change
A land dispute by two neighbors in Boulder, Colorado in late 2007 that made national headlines and stirred public opinion prompted state legislators to change the law that allowed it to happen. The whole story as reported by The Daily Camera can be read here.
Two State Representatives, Rob Witwer of Evergreen and Ron Tupa of Boulder co-authored a bill to stop what they determined to be outright abuse of the current law. Witwer said "the current law was out of balance and needed to be fixed. It was clear that abuse of adverse possession was much easier in Colorado than in most, if not all jurisdictions."
The New Law
On July 1, 2008 HB 2008-1148 was signed into law by Governor Ritter, and applies to all adverse possession cases following this date.
In addition to the current requirements, the following is also required:
"The person claiming adverse possession had a good faith belief that the person in possession of the property of the owner of record was the actual owner of the property and the belief was reasonable under the particular circumstances."
Also included in the law, judges will have the power to force adverse possessors to pay for the land they do win in court, and to compensate the original owners for back property taxes, and interest.
With the new law the burden of proof will lie with the possessor to prove they have evidence they were the actual owner which should reduce the number of cases appearing before the court. Unfortunately the new law was a little late to apply to the Boulder case.
And, One Other Law-
In the Boulder case, the possessors were a former judge and an attorney. This fact prompted another law to be passed which will restrict judges from hearing cases involving other judges from the same jurisdiction, in an effort to avoid conflicts of interest or the appearance of favoritism.
Jerry Hart Denver Real Estate information
Editors note: this article is not meant to provide any legal advice. Always consult an attorney for a particular application.