Sunday, November 04, 2007, 04:42 PM
Posted by Administrator
By Bob Greenlee Sunday, November 4, 2007Posted by Administrator
Most of us would like to believe that when we own property and pay taxes on it, a reasonable assumption is that no one else can claim it as theirs. Unless you live in a "progressive" community like Boulder, where common sense is occasionally as rare as a conservative's view of private property rights.
Twenty-three years ago, Don and Susie Kirlin purchased two undeveloped lots in Boulder's Shanahan Ridge. They were considering whether to build a home on their property or sell one or both lots sometime later. Last month a portion of their property was taken away by District Court Judge James C. Klein and given to neighbors under the legal doctrine called "adverse possession." If you've never heard this term before, it's likely you're not a clever lawyer who knows how to manipulate "the law" for personal gain at someone else's expense.
The home adjacent to the Kirlin's is owned by Edith Stevens and Richard McLean. They apparently planted so extensively on their property that easy access to their back deck and yard was difficult. Somehow the two decided they would use their neighbors' property and created what they and Judge Klein call "Edie's Path." In addition to "Edie's Path" Richard apparently created his own access across his neighbor's property — also without permission. "Dick's Path" allowed him to move a lawnmower from his garage to the back yard. Court testimony indicates McLean and Stevens also held a number of summer events on their neighbors' property and moved a wood pile on it.
McLean testified that: "No one interfered with (their) use of the disputed property" and goes on to say that neither he nor Stevens asked for permission to use the property and that they both knew the property was some else's. In addition they admit using the property "openly, continuously and notoriously for 25 years." They simply admit to trespassing on property that wasn't theirs and on which they had no legal right to claim as theirs. Seems pretty clear-cut. Unless, of course, you know the legal tricks of claiming "adverse possession." Stevens and McLean are both lawyers, and McLean is a former judge and once served as Boulder's elected representative on the Regional Transportation District's board of directors.
According to court documents, the concept of adverse possession "is a method of acquiring title to an interest in land without the consent and typically over the objection of the true owner." Interesting concept. But if you ever find yourself in a court of law, you'll soon discover that up can suddenly become down, black becomes white, and common sense disappears as quickly as walking through a metal detector on the way to never-never-land.
The case clearly established that Stevens and McLean trespassed on their neighbor's property over a long-enough period and were therefore legally entitled to a portion of it. Free. Without paying rent or taxes. What a deal!
According to the judge, an initial presumption of ownership is in favor of the "record title holder." Just to sway things against rightful property owners, however, court documents indicate that after a period of time, anyone can claim land as theirs simply by forming "a personal attachment that is stronger that the true owner's attachment."
Really? In addition, when another person's use of a property goes unchallenged over a long period of time, the "use it or lose it" doctrine prevails. According to Judge Klein's final order, title must now be transferred from the lawful taxpaying owners to their trespassing neighbors because of their "strong attachment" to it.
If any of this makes a lot of sense to you, it's obvious you're far more "progressive" than I'll ever hope to be.
Bob Greenlee can be reached at: robertdgreenlee@aol.com.
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