As an attorney who handles, among other things, real property matters, I often have been approached by clients regarding property boundary issues.
These issues frequently arise after someone has obtained a new survey where the survey shows that the actual property boundaries differ in some fashion from what owners believe to be the property boundary. There may be fences which are not on the boundary lines or other improvements such as buildings which are encroaching on another owner’s property.
Colorado law contains avenues to resolve the property boundary dispute. Where the property has been used for many years by a party who is not the record owner, adverse possession law can resolve the dispute. If the parties claiming ownership of the disputed property cannot reach an agreement as to the property ownership, a party has the option of bringing a quiet title lawsuit.
Under Colorado law, a party must show that his possession of the disputed parcel of land was hostile, actual, exclusive, adverse, under a claim of right and uninterrupted for the statutory period, which generally is 18 years (a limited exception allowing for possession after a shorter time period).
It is not sufficient for the adverse possessor to claim ownership of the disputed property. The adverse possessor must actually demonstrate that the disputed property’s record owner has been excluded from the property. To demonstrate actual possession of the land, an adverse possessor must act as an ordinary landowner would and utilize the land for the ordinary use of which it is capable.
Further, the adverse possessor’s use of the disputed property must be sufficiently open and obvious to put the record owner on notice that the adverse possessor intends to claim the land.
In 2008, the Colorado legislature amended the statute governing adverse possession. For any claims vesting on or after July 1, 2008, the adverse claimant has to establish a good faith belief which was reasonable under the circumstances that he or she was the actual owner of the disputed property. The legislature also granted the court the authority to determine in its discretion whether to award fair and equitable compensation to the record owner who has lost title to the adverse party.
To meet the requirement of uninterrupted use for a period of at least 18 years, the adverse party need not have been using the property for the entire 18-year period. The adverse party can also rely upon usage by his or her predecessor in interest through the doctrine of tacking. This means that if the adverse party has only used the property for 10 uninterrupted years, but his or her predecessor had used it for 10 additional years, the adverse party could “tack” the predecessor’s 10 years of usage onto his or her own term of usage to meet the 18-year requirement.
There are many nuances to adverse possession and many of the disputes are not straightforward; however, boundary line issues arise all the time.
In the event you become involved in a boundary dispute, you may want to consult with an attorney to better understand your rights.
Ken Golden is a partner with the law firm of Gregory, Golden & Landeryou, LLC. He can be reached at (970) 247-3123.