Appeal likely in 'adverse possession' case in Boulder

By Heath Urie (Contact) Saturday, November 10, 2007

Camera columnist Bob Greenlee shocked some of those who read his commentary this week, when he described a Boulder couple's lawsuit that concluded last month with a judge awarding them control of a portion of their neighbor's property because they proved to have a "stronger" attachment to the land than the true owners.
But a Denver attorney who specializes in land and development cases said the legal concept of "adverse possession" that was used to win the suit is far more common than most people realize.

In his Sunday column, Greenlee wrote that 23 years ago Don and Susie Kirlin purchased two undeveloped lots in Boulder's Shanahan Ridge, located in the 2000 block of Hardscrabble Drive. They were considering whether to build a home on their property or sell one or both lots.
According to court records, the Kirlins left the property vacant and unattended while the homeowners next to the lot, Edith Stevens and Richard McLean, created two dirt paths through the property to access their own backyard "virtually every day" for almost 25 years.
Stevens and McLean said in court that they knew the land was owned by someone else, but they used it anyway for access to their yard, to host parties and to store a wood pile.

After a dispute erupted among the neighbors over a fencing issue, McLean, a former judge, hired Boulder attorney Kimberly Hult to sue the Kirlins for ownership of their longtime pathway by taking advantage of adverse possession.

The doctrine, incorporated into Colorado's Revised Statutes, essentially states that if a person occupies the land owned by another person for long enough, without being challenged or given permission by the owner, the land becomes the property of the person most attached to its use.

In Colorado, the statutory time a property must be occupied before asserting adverse possession is 18 years, and even then, squatters have a heavy burden to prove that they meet all the requirements of the law. In the case of McLean and Stevens, Boulder District Court Judge James C. Klein found the couple had taken possession of their neighbor's land in an "actual, adverse, hostile, under right of claim, exclusive and uninterrupted" manner — consistent with the language of the law.

Klein signed an order Oct. 17 demanding that the Kirlins sign over the title to the 12-foot-by-3-foot, semi-circular trail — or about 34 percent of their lot — to McLean and Stevens. McLean said he didn't want to "try the case in the media" and referred all questions to the couple's attorney, Hult, who also said she would not comment on the specifics of the case because she expects the Kirlins to file an appeal.

An attorney for the Kirlins confirmed an appeal likely would be filed but declined to comment further about the case. The Kirlins argued in court that they have been proper stewards of their land, paying property taxes and homeowners' association fees since first purchasing it. They said they never noticed someone was encroaching on the lot.

Hult said McLean and Stevens have faced a barrage of "negative" letters and other reactions from Boulder residents since details of the case became public, including dozens of critical comments posted on the Camera's Web site, www.dailycamera.com.

Denver business and commercial law attorney Andrew M. Toft said Friday that homeowners should take notice of the case because use of the statute comes up regularly in property disputes.

"Adverse possession has been around a long time, and it's not a theory of law that is questioned," Toft said. "If I have a fence that goes 2 feet onto my neighbor's lot line, and it stays there for 17 years ... at the end of those 17 years, conceivably I could go to court and (argue), ‘Your honor, I own this land now.'"
He noted that the Kirlins would have been within their rights to call authorities about any trespassing on their property, but because they did nothing, the adverse-possession clause prevails.

Toft said he sees the law used more frequently in rural areas, where boundary disputes span dozens or even hundreds of acres. However, he warned that some property owners can be caught off-guard by the particulars of the law.

"Suddenly, it can become an issue," Toft said. "I don't think it's something that your average layperson is going to have a lot of experience with."
The judge in the case wrote in his final order that the adverse-possession doctrine has existed since at least the 16th century.