Revisions to Adverse Possession Laws Effective July 1

The Independence Institute’s Property Rights Project blog points out a Boulder Camera story on big changes coming July 1 in Colorado adverse possession law.

At midnight Tuesday, several changes to Colorado law will go into effect that increase the legal standards for proving “adverse possession,” a legal maneuver that has allowed trespassers who openly use land for at least 18 years to claim it as their own with relatively little legal burden.

The changes also will give judges the power to force adverse possessors to pay for the land they do win in court, and to compensate the original owner for back property taxes, and interest.

Another law going into effect this week 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.

All of the changes are the result of dozens of state lawmakers who signed onto legislation this year aimed at preventing the abuse of adverse possession.

In the earliest days of private property ownership, surveying techniques were crude and legal descriptions of property boundaries did not always follow the actual boundary as physically marked in the field. The original adverse possession laws sprung from the concept of “possession is nine-tenths of the law.” If two adjoining land owners considered a fence as the boundary line for decades, and one party built improvements right up to that fence, an adverse possession case could arise if a surveyor determined the boundary line was five feet from the fence (and through the improvements). The adverse possession, in this instance, could return the boundary to the historic fence line.

As in other land rights cases, justices expanded the definition of the law beyond its spirit, such as the Kirlin case in Boulder. It is sad that a law is necessary to force a judge to recuse himself because of a conflict-of-interest due to working with another judge. The idea of paying back taxes on the land would work well when the disputed land is a large parcel, but the costs would be limited for a small strip of land.

What a concerned property owner should do is inspect his or her land. Have a Professional Land Surveyor survey your land, set pins if necessary, and show you where your boundaries are. If neighbors have buildings, concrete, flowerbeds, paths, or whatever crossing your property line, write a certified letter to them. Even if you have no problem with the flowerbed or the concrete, the mere act of notification could stop the eighteen year adverse possession timeframe. *SEE UPDATE BELOW

Hopefully, the higher bar for adverse possession will limit the number of cases in the future. While a judge will determine the property line in a boundary dispute, that is the riskiest and most costly way to go. Who knows what the location of the common line will be, and what rationale the judge use to make the determination.

In most cases, a boundary line agreement between the disputing property owners can determine a common boundary line in a much more satisfactory manner than forcing litigation and adverse possession will ever do.

by Civil Sense

*UPDATE: The purpose of this post was to provide a layman's overview to the adverse possession issue.  Please note that I am not a lawyer and cannot give legal advice.  One should consult an attorney and/or a land surveyor to discuss the specific legal issues involved in any land dispute.

Comments

[Eric Colburn]

I think it's about time adverse possession laws were updated. In my opinion, the use of adverse possession needs to be significantly reduced or done away with altogether.

Most Americans are unaware that adverse possession even exists, sometimes confusing it with eminent domain, and are shocked when it is explained to them. As a concept, it seems un-American, unnecessarily promoting conflict and taking what many Americans hold precious – their land.

If someone broke into your car, taking it for a number of years, we would not allow that person, a crook, to eventually own the car. In the case of an apparent separation between the location of an ancient line and a fence, this sometimes has nothing to do with adverse possession, the disparity often can be attributed to many other factors including, but not limited to, inaccurate dependent survey, recognition and acquiescence, or just plain ignorance as to the property lines location by the adjoining land owners.

[NJ]

"write a certified letter to them"

this may not be the best advice, as in many cases adverse possession must be open and notorious to be granted. Writing a certified letter and taking no further action proves the property owner is aware of the encroachment and neglected to assert possession

"The adverse possession, in this instance, could return the boundary to the historic fence line."

If adverse possession is granted it would change the legal property line, the boundary line remains as originally intended.

[bruce]

I have found a house that appears to have been abandoned for at least 2 years . Can I claim it ???? Move in , make repairs, etc ?? Bruce

Edited by blog author to add: We don't give legal advice here. Historically, you might have been able to do just that, though you would have had to stay for 18 years before you could claim adverse possession. If you have a spare 18 years, talk to a lawyer.