Ten Years After Colorado’s Adverse Possession Amendment: a brief look backwards and forwards
In response to national outrage over an infamous adverse possession case in Boulder, Colorado, in which a lawyer and a judge intentionally took their neighbors’ undeveloped land through adverse possession, the Colorado legislature amended the state’s adverse possession statute (C.R.S. § 38-41-101) to make the claim significantly harder to prove. It did this because it believed “there were insufficient ‘obstacles’ to establishing a claim for adverse possession under the existing law.”[1] Effective July 1, 2008, the amendment created a heightened burden of proof, additional element requirements, and the possibility of a losing defendant recovering money from successful plaintiffs for the value of the land they took and the taxes the defendant had paid on that land.
The Boulder case eventually settled, but the resulting statutory amendments have drastically changed the landscape of Colorado’s adverse possession law. Ten years later, this blog post takes a brief look at the amended statute, the impact it has had, and questions that have yet to be resolved.
The Claim:
“Adverse possession” is basically a claim to take someone else’s land, making it yours and not theirs. While the elements of adverse possession can vary somewhat from case to case, generally speaking, to “obtain title by adverse possession, 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 [7] for the statutory period” of eighteen years.[2] While not typically listed as an “element,” courts also recognize that “the use must be sufficiently open and obvious to apprise a true owner who exercises reasonable diligence that he intends to claim adversely” before the eighteen-year period could begin running.[3]
Pre-Amendment Adverse Possession in Colorado:
Prior to the 2008 amendments, the burden of proof was (generally) a preponderance of the evidence, there was (probably) no requirement that claimants ever believed the land was theirs, and several common-law principles existed through which a party could establish rebuttable presumptions of adverse possession without satisfying all of the elements. Notable among these was the “presumption of adversity” that arose “after the claimant demonstrates that he has been in actual and exclusive possession of the property for the statutory period” of eighteen years.[4] Under this presumption, a party claiming “adverse possession” typically did not have to show their possession was actually adverse.[5]
The Effect of the 2008 Amendment:
Since July 1, 2008, adverse possession has been harder to prove and riskier to bring. Under the amended statute, for any claim filed on or after July 1, 2008, the claimant must prove each element of adverse possession by clear and convincing evidence. Further, for every claim where title would have vested after July 1, 2008 (i.e., claims where the eighteen-year period did not finish until after that date), claimants cannot prevail unless they (1) present evidence to satisfy all of the common-law elements of adverse possession, and (2) demonstrate that either they or their predecessor in interest had a good faith belief that they actually owned the land, and that the belief was reasonable under the circumstances. The amendment also gives a court awarding property through adverse possession discretion to require the claimant to compensate the party losing title for the actual value of the lost title and for the taxes paid over the last eighteen years on that property, increasing the risk of bringing an adverse possession claim.[6]
What’s Next?
These amendments have certainly achieved the legislature’s goal of making adverse possession claims harder to win. However, significant questions still remain. Is there a meaningful difference between being required to prove each element of adverse possession, as applies when a claim is filed after July 1, 2008, and having to provide evidence of every element of adverse possession, as applies when a claim vests after July 1, 2008? Have trends developed on how and when courts exercise their discretion to compensate losing defendants for their lost land? If not, will they? And, perhaps most significantly, can any of the common law burden-shifting presumptions (which are still asserted regularly) survive a properly-framed challenge under the statutory requirement to prove and/or provide evidence of every element? Ten years after the amendments, these questions remain unanswered. I, for one, am excited to see how they play out in the courts over the coming years.
[1] Beaver Creek Ranch, L.P. v. Gordman Leverich Ltd. Liab. Ltd. P’ship, 226 P.3d 1155, 1161 n.2 (Colo. App. 2009) (citing Hearing on H.B. 1148 before the S. Judiciary Comm., 66th Gen Assemb., 2d Sess. (March 12, 2008)).
[2] Welsch v. Smith, 113 P.3d 1284, 1287 (Colo. App. 2005) (citing Smith v. Hayden, 772 P.2d 47 (Colo. 1989)); see C.R.S. § 38-41-101(1).
[3] Schuler v. Oldervik, 143 P.3d 1197, 1203 (Colo. App. 2006).
[4] Sleeping Indian Ranch, Inc. v. W. Ridge Grp., L.L.C., 107 P.3d 1028, 1031 (Colo. App. 2004), rev’d on other grounds sub nom. Sleeping Indian Ranch, Inc. v. W. Ridge Grp., LLC, 119 P.3d 1062 (Colo. 2005).
[5] Although evidence that the use was permissive would defeat this presumption of adversity, the burden was still on the defending party to rebut the adversity presumption. See Miller v. Bell, 764 P.2d 389, 390 (Colo. App. 1988).
[6] It is important to note that these requirements only impact affirmative claims of adverse possession, and do not apply to prescriptive easements. Moreover, where adverse possession is asserted only as a defense to claims like trespassing, the burden remains a preponderance of the evidence.