Nosy Neighbor Encroaching on Your Property? Boundary Disputes and Adverse Possession in Colorado
Boundary disputes, even those over small parcels of land, can have high stakes for the property owners. For example, a neighbor’s encroaching driveway or patio may restrict your ability to build or renovate your own home. Adverse possession is one way for a property owner to obtain title over adjacent disputed land. If a claimant maintains adverse possession for a period of eighteen years in Colorado, or seven if they pay property taxes and hold color of title, then title transfers from the previous record owner to the claimant. Unfortunately for adverse possessors in Colorado, they may have to compensate the person losing the property for the market value plus back taxes and interest.
This blog analyzes adverse possession in Colorado and discusses your rights as either the adverse claimant or the record owner of the property.
What is adverse possession?
Adverse possession is a legal doctrine that allows a person to obtain valid title to land originally owned by another party so long as the adverse possessor meets certain requirements, including actual and exclusive possession of the property for a certain amount of time. It is also worth noting that an individual cannot acquire title through adverse possession of any property owned by the government. In Colorado, adverse possession may be obtained after seven years of adverse possession if the claimant makes consistent payments of property taxes and holds color of title. Color of title is merely a written document that demonstrates a good faith belief by the possessor that they are legally entitled to the land. This good faith belief is often based on a mistake in one or both deeds of trust. If the claimant does not hold color of title or does not make payments on the property taxes, then the statute of limitations runs after eighteen years of adverse possession, at which point the record owner may no longer sue to assert their ownership and remove the possessor from the land.
How do I show adverse possession?
An adverse possessor must prove six elements by clear and convincing evidence to a jury or the court. Those six elements are actual occupancy, exclusive possession, hostile possession, adverse possession, good faith, and continuous adverse possession.
Actual Occupancy
“Actual occupancy” is a legal term that means you must do a bit more than just show up and physically occupy the property for a moment each day or week (although that may be sufficient under some circumstances). Rather, actual occupancy means the possessor must act as the ordinary landowner during the full eighteen years, utilizing the land for the ordinary use to which the land is capable. The best way to show actual occupancy is to use visible markers or make improvements on the land that give notice to both the actual owner and the public of the claimant’s belief that they own the land. Although this does not require improvement across every square inch of the land, rather visible markers along the boundary are sufficient.
Exclusive Possession
Actual occupancy is the easy part, things get tricky as the next several elements somewhat blend together. Exclusive possession requires that the claimant “effectively exclude” the record owner (and the general public or other possessors) from the property. A record owner can defeat exclusive possession merely by annual use of the property for a typical activity. For example, a property owner of a vacation home who occupies the home only once per year for a week-long vacation likely defeats the claim of the hypothetical possessor who lives there the other 51 weeks of the year unbeknownst to the record owner (who really ought to rent the place out, see Short-Term Rentals in Denver: How to Start Your Airbnb in Denver).
You cannot make an adverse possession claim if you are making a claim to “share” or “use” the property with the actual owner. Joint possession defeats an adverse possession claim. For a discussion of easements, specifically easements by prescription, see Easements Blog.
Hostile Possession
“Hostile” does not mean that you must go start a fight with the record owner and declare outright war for the disputed property. A claimant must simply show that their possession occurs without the permission of the record owner and that their intent is to claim ownership of the property. Because of how this hostility element interacts with the exclusivity and good faith elements in an adverse possession claim, if the claimant recognizes title in the record owner at any point in the eighteen years, then hostility is defeated. Thus, the adverse possession claimant must possess the property with the clear intent to declare ownership but not to steal it outright from a neighbor that already owns the property.
Adverse Possession
Adverse possession is most easily recognized in common parlance and often as a term of art in courts, as either “open and obvious” or “open and notorious” possession. A claimant’s possession and use must give sufficient notice to any interested party of their ownership over the land. This term essentially is a catch-all that includes the other elements discussed above. In fact, if a claimant is able to prove actual and exclusive possession, then they enjoy a presumption of adverse possession.
Good Faith (Under a Claim of Right)
To satisfy a claim for adverse possession, Colorado requires that the possession be under claim of right. “Under claim of right” means that the adverse possessor is making the claim based on constructive possession (the ability to use and possess the property) and color of title or on actual use and possession of the land for the statutory period. This really is a requirement that the adverse possessor acted in good faith. It requires the possessor to have a basis for their belief that they owned the property, whether that basis was a mistake in the legal description or map or simply based on their continuous use and possession for the prescribed time.
Continuous (Uninterrupted) Adverse Possession
Continuity is where most adverse possession claims fail. Continuous adverse possession requires all of the elements of adversity discussed above be satisfied at all times during the statutory period. This is exceedingly difficult when it comes to exclusive, hostile, and adverse possession. For example, the permissive use of the property immediately defeats any claim of exclusivity and hostility. Thus, a property owner may simply come to the property and provide the would-be adverse possessor with explicit permission to use the property. In an extreme case, an adverse possessor could spend seventeen years, three-hundred and sixty-four days on the property, the whole time improving it and investing in the land. Then, on the last day, the record owner can come by and tell the possessor: “I like what you’ve done with the place, and just so you know, I’ve been happy to let you use my property all these years, but it’s time for you to go.” This act, along with physically removing the claimant, would interrupt the hostility requirement and restart the clock at day one for the claimant.
On the bright side for adverse possessors, if there is privity between successive occupants holding adversely to the true title continuously, the successive periods of occupation may be united or tacked to each other. This means that successive occupants may hold the same claim to adverse possession over a property without interrupting the eighteen-year period, so long as they are connected by privity, which is a relationship between people who successively have a legal interest in the same right or property. Privity is not difficult to obtain or prove. Parties can be in privity by blood, contract, or estate. Thus, if a property with an incorrect legal description that claims ten extra yards of the neighbors’ lawn is passed from a party that adversely possessed it for ten years– say parents pass the property on to their children or it is exchanged by contract between two unrelated parties or it passes to a charity upon the death of a testator–then the successor only needs to adversely possess the property for another eight years to satisfy the statutory period.
What does a successful adverse possession claimant receive?
A successful adverse possession claimant is awarded record title to the property, but that usually comes with some additional expenses in Colorado. Due to legislative backlash over abuse of the old adverse possession statute, Colorado passed a statute in 2008, which provides that a court may award damages in favor of the party losing the property to the adverse possessor. Accordingly, the successful adverse possessor in Colorado may have to pay damages to compensate for the loss of property based on the actual value of the property and the property taxes actually paid by the record owner during the time of adverse possession with interest. This caveat to successful adverse possession in the legislature just makes the claimant pay the same amount as if they had contracted to buy the property from the record owner at the beginning of the outset of the statutory period.
Conclusion:
Adverse possession can be a complex doctrine that demands fact-specific inquiries. It also takes a long time, so you want to make sure it’s done right the first time. Additionally, adverse possession can be defeated relatively easily, but the stakes are high if you stand to win or lose valuable real estate. If you are considering whether you may have a strong adverse possession claim or if you are battling neighbors encroaching on your property, fill out an interest form today to see if GLO can help you. GLO has extensive experience in helping clients along the Front Range on both sides of the boundary with adverse possession.
GLO has prepared this blog to provide general information on legal issues that may be of interest. This blog does not provide legal advice for any specific situation and this does not create an attorney-client relationship between any reader and GLO or its attorneys. GLO engages clients only through specific fee arrangements and signed engagement letters. GLO does not guarantee any results.