Adverse Possession
Boulder 2007
A Definition
• Adverse possession is a principle of real
estate law whereby somebody who
possesses the land of another for an
extended period of time may be able to
claim legal title to that land.
• The real property is acquired without
compensation.
• The law of adverse possession is partly
common law and partly statutory law.
• The required period of uninterrupted
possession arises out of a statutory
limitation period (aka the “statute of
limitations”). In Colorado, the statute of
limitations is 18 years.
“Seisin”
• In English feudal society, possession
gained credibility with the passage of time.
Seisin was not ownership nor was it mere
possession that could be established by
the seizure of land. Seisin belonged to
someone who used the land or exercised
rights over it.
Requirements for adverse possession
• Adverse possession requires three elements in regards
to the possession of the property:
– physical: open and notorious (visible); actual; exclusive;
– mental: hostile;
– temporal: continuous (uninterrupted).
• In simple terms, this means that those attempting to
claim the property are occupying it exclusively (keeping
out others) and openly as if it were their own. Generally,
the openly hostile possession must be continuous
(although not necessarily constant) without challenge or
permission from the lawful owner, for a fixed statutory
period in order to acquire title. In Colorado, the statute of
limitations is 18 years.
An extended set of requirements:
• The person claiming ownership through adverse
possession must show that its possession is
–
–
–
–
–
–
–
actual,
open,
notorious,
exclusive,
hostile,
under cover of claim or right, and
continuous and uninterrupted for the statutory period.
Common Defenses against Adverse
Possession lawsuits
• Permissive Use - If the actual owner has granted the
claimant permission to use the property, the claim of
"adverse possession" cannot be deemed "hostile" and
thus fails.
• Insufficient Acts - Although it is conceded that the
claimant engaged in some use of the property, these
acts were not sufficient to amount to acts suggesting a
claim of ownership.
• Non-Exclusive Use - Although it is conceded that the
claimant engaged in some use of the property, others
(usually the property owner) also used the property in a
manner consistent with that of the landowner.
• Insufficient Time - Even if various elements of adverse
possession were met, the adverse possession did not
last for the full statutory period, or that the adverse
possession was interrupted by a period of non-use.
• Circumstances of the adverse possession
determine the type of title acquired by the
adverse possessor:
– fee simple title,
– mineral rights,
– or another interest in real property
England and Wales
- Home of the Common Law
• In England and Wales, adverse possession has been
governed by the Limitation Act 1980.The limitation
period for the adverse possession of land is 12 years.
• But the position of a registered landowner has been
greatly improved since the passage of the Land
Registration Act 2002. Where land is registered, the
adverse possessor may apply to be registered as owner
after 10 years of adverse possession. The Land Registry
must give notice to the true owner. This notification gives
the land owner 65 business days to object to the adverse
possession, after which the true owner will have a further
two years in which to evict the adverse possessor. This
effectively prevents the removal of a land owner's right to
property without their knowledge.
-- How for File an Ethical Grievance
Posted by Reality_Check
Just because it was Legal doesn't mean it was Ethical. Therefore the Kirlins -- or ANY interested
parties -- can and perhaps should file a Grievance with the Colorado Supreme Court Disciplinary
Committee regarding Dick McLean's and Edie Steven's unethical behavior.
There have been 100s of attorneys suspended or disbarred for unethical acts which themselves
were perfectly legal.
Colorado Supreme Court Office of Attorney Regulation (303) 866-6410 or 1 (877) 888-1370
The complaints must be in writing, so don't harangue the secretary there when calling. Just ask
that a Grievance Complaint package be mailed to you. Don’t explain the case to the clerk on the
phone, just ask that a complaint package me mailed to you. In the odd chance a clerk there tries
to refuse or dissuade you, get their full name for the record. Every person in Colorado has
standing to bring a request for ethical violations against any attorney they have knowledge of who
may have acted contrary to the rules of professional conduct. You do not have to he a party to the
action in question, you do not have to be directly involved with said unethical attorney.
Acts which tend to place the Legal Profession in a bad public light are frowned upon, whether
legal or not. Deliberately exploiting the arcane Adverse Possession law, by a professional
Lawyer/Jurist, to their own personal financial advantage against lay-person neighbors, in a
modern residential development is, at a minimum, abusive.
Rules of Professional Conduct
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly
assist or induce another to do so, or do so through the act of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a judge, judicial officer,
government agency or official;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of
applicable rules of judicial conduct or other law;
(g) engage in conduct which violates accepted standards of legal ethics; or
(h) engage in any other conduct that adversely reflects on the lawyer's
fitness to practice law.
Here's the primary violation in question:
(c) engage in conduct involving DISHONESTY, FRAUD, DECEIT or
MISREPRESENTATION;
[I]n order to prosecute and prevail in their Adverse Possession
action against the Kirlins, McLean/Stevens had to confess and
stipulate to those elements -- dishonesty, fraud, deceit -- in order to
meet the requirements of Adverse Possession.
Points of Fact:
McLean/Stevens KNEW the property wasn't theirs.
McLean/Stevens willfully and deliberately trespassed on said
property for years, knowing those actions would eventually cause
severe financial harm to their neighbors.
McLean/Stevens KNEW the rightful owners lived next door and took
no effort to directly contact them about their actions and intent.
McLean/Stevens KNEW that their continued trespass of their
neighbor's property would eventually result in conversion of said
property to the sever financial harm and detriment of their neighbors,
and to their own selfish benefit.
McLean/Stevens acknowledged it was their INTENT to "hostilely
occupy and take" the Kirlin's property as their own, without
permission, without compensation, and against the will of the Kirlins
McLean/Stevens KNEW that if they disclosed their habitual
trespass, and/or their intent to "hostilely occupy and take the
property" directly to the Kirlins at any time prior to 18 years it would
extinguish the claim. <note: if the Kirlins had even *given
permission* to McLean/Stevens, that too would have nullified the
claim.>
McLean/Stevens hid their intent to convert <steal> the property from
the Kirlins in order to profit personally.
IPSO FACTO - "conduct involving dishonesty, fraud, deceit or
misrepresentation"
"... ours is a sick profession marked by
incompetence, lack of training, misconduct and
bad manners. Ineptness, bungling, malpractice
and bad ethics can be observed in court houses
all over this country every day ... these
incompetents have a seeming unawareness of
the fundamental ethics of the profession."
-- Chief Justice Warren Burger
Adverse possession has been part of property law virtually since the
inception of the US - and is in place all over Europe as well. It was put in
place to prevent people from acquiring massive plots of land and not using
them. There is an excellent piece on it at http://real-estatelaw.freeadvice.com/real-estate-law/adverse_possession.htm
In Colorado, eighteen years of adverse possession is conclusive evidence
of absolute ownership before one can lose the property to squatters. If the
Kirlins had simply fenced the property as soon as they bought it - or evicted
the neighbors the first time they encroached on the property, the law would
have been on the Kirlins' side. They chose not to protect their land probably because they didn't know about a law which is being abused for
personal gain by their neighbors.
In all probability, the Kirlins are screwed, although I would immediately be
contacting a property lawyer to sue for property taxes & homeowners' dues
paid (although the fact that the Kirlins paid those taxes & dues may "save"
them - since many states accept payment of property taxes as proof that the
property is not abandoned).
“The intent of this common-law concept is really
OK--and has to do with abandoned property
which then someone else takes care of. The
intent was clearly not what happened here. The
judge who made this ridiculous ruling should be
recalled--and perhaps the law should be
changed to require that people who intend to
make such a claim give notice to the current
owners rather than take property by stealth.”