Thursday, November 15, 2007

Gimme! A Legal Land Grab in Boulder

by Osman Parvez
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Recently, a judge granted a trespassing Boulder couple ownership of land backing open space. The takers of the land are a former judge and lawyer couple. Obviously, they know the law. Seeing the owner's intent to build, they filed an action to possess the land and maintain their access. According to the defendants, this wasn't about access to open space. It was really about protecting their views. The plaintiff's were given a portion of the land, possibly rendering the full lot unbuildable. The previous owners value the lot (and their loss) at $800,000 to $1,000,000.

What's adverse possession? The law allows the taking of title to property by demonstrating continuous (notorious, open, and adverse) use for 18 or more years. In some cases, for instance if the trespasser has been paying taxes on the property, the law allows adverse possession in far less time. Although rarely used, it has a well established legal precedent.

The incident invites a number of questions. Although seemingly legal, was it ethical? Should owners be required to stop others from trespassing on their land in order to protect their rights? When this type of thing is well publicized, sadly it leads to more "no trespassing" signs. Some owners may not truly object to people hiking through their land, the reality is that if they don't try to prevent it, they risk losing it.

The take home lesson is that if you're a landowner in a state that has adverse possession laws, you better check for hiking trails or other evidence of use on a regular basis. This should be part of a purchaser's due diligence, particularly if you're buying land. Although I hate to see it, the truth is that owners need to document efforts to limit adverse use of their property, including posting no-trespassing signs. It doesn't take much... fence off that trail, post a sign ("Git Off My Land"), and take a photograph. Every couple of years should work. If you've granted use of your land to your neighbor, you'd better document what that entails (use), what it doesn't (possession), the consideration, and for how long (less than 18 years). Of course, this isn't legal advice, so consult with your attorney.

From the Daily Camera


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3 comments:

  1. Osman,
    "No Trespassing" signs do nothing to deter an adverse possession claim in Colorado. In some states (GA, IA, LA), where the claimant must believe the land is his/her own, such signs would help. In other states (AR, ME, MI, MO, MY, NV, SC, TX, VA, VT, WY), where the claimant must intend to take the land, the signs would actually help the claimant. Sounds screwy, I know, but that's the way it is. Suffice it to say there is a legitimate use and a good reason for the doctrine of adverse possession, but Hizzoner's slimy land grab ain't it.

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  2. That's really surprising. So if "no trespassing signs" don't deter adverse possession, what can you do? What about blocking usage with fences, downed trees, etc?

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  3. Preventing or interrupting the adverse use will do it, as long as the clock hasn't run out. (Fences, calling law enforcement to address the trespass, civil suit if necessary). Ironically, so will giving permission to the tresspasser (with or without payment). Then the use is no longer "adverse" because it's done with the owner's permission - and the clock stops on the adverse possession claim. (Anyone using this approach should do it in writing.) By the way, even though I know this sounds like a legal issue and what I said might sound like advice, this isn't "legal advice" if you know what I mean. (You'd think an anonymous posting would protect you, but you'd be surprised what goes on . . . ah the strange habits of the professional paranoiac.)

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