Adverse possession is a method of obtaining title to a property through possession, rather than by purchase, inheritance or gift. It is primarily a common law doctrine, which has been developed by courts over the years. However, some states, such as Colorado, have enacted statutory regulations that amend and extend the basic common law requirements. In 2008, in response to a controversial court case, the Colorado legislature passed new regulations changing the way adverse possession operates in Colorado.
Colorado Common Law Adverse Possession Requirements
In order to succeed in gaining title to property through adverse possession, a Colorado claimant must show that the possession is actual, hostile, adverse, exclusive, under a claim of right, and uninterrupted for the required amount of time. Actual possession means that the claimant actually used the land in the way that a true owner would use the land. This can include things as simple as fencing in a portion of a yard belonging to a neighbor, or as extensive as farming multiple acres of someone else’s farmland. The “adverse” and “hostile” elements require that the claimant make an unequivocal act against the true owner’s interest that is “open and hostile”. This means that the claimant is making some overt act that the true owner can see. Exclusive means that there is no sharing of possession with the true owner or the general public. Under a claim of right means that the claimant believes that the property is his due to an error in a legal description of the property, or that he actually used and possessed the property at issue for the required amount of time.
Colorado Statutory Period
The final element of the claim is the uninterrupted possession for the statutory period. In Colorado, the statutory period is 18 years or seven years if the claimant has been paying taxes on the property. The original adverse possessor must be in possession for the entire period, unless the doctrine of “tacking” applies. The tacking doctrine allows later adverse possessors to claim the time the property was in the possession of an earlier adverse possessor, but only if the current possessor obtained title to the property through a purported deed.
The “Boulder Case”
The “Boulder Case” refers to the court case of Mclean and Stevens vs. DK Trust and Kirlin, and was heard in Boulder District Court in 2008. In the case, a retired judge and Boulder mayor sued to acquire part of his neighbor’s vacant lot, which he had been using the lot to access their backyard. The court awarded the former mayor about one-third of the original owner's lot. A great deal of media attention and public outcry led the Colorado legislature to pass new statutory regulations changing how Colorado adverse possession operates.
New Colorado Requirements
In cases filed after July 1, 2008, Colorado adverse possessors have a more difficult case to prove. First, they are required to prove each common law element by “clear and convincing evidence”, a much higher standard of evidence than the previous standard of “preponderance of the evidence.” Additionally, the claimants must prove that they had a good faith, reasonable belief that they were the actual owners of the property. This provision no longer allows an adverse possessor to intentionally enter into someone’s land with the intention of adversely possessing it in the future. Furthermore, the court can award compensation to the losing original owner to compensate not only for the lost property but also back taxes paid during the statutory period.