Adverse Possession After House Bill 1148
| Publication year | 2008 |
| Pages | 73 |
2008, November, Pg. 73. Adverse Possession after House Bill 1148
November 2008
Vol. 37, No. 11 [Page 73]
Real Estate Law
Real Estate Law articles are sponsored by the CBA Real Estate Law Section.
Article Editor
Joseph E. Lubinski, Denver, of Ballard Spahr Andrews & Ingersoll (303) 299-7359, lubinskij@ballardspahr.com
About the Authors
Geoffrey P. Anderson is a shareholder in the Denver area law firm Burns Figa & Will PC, where he emphasizes real estate litigation, real estate transactions, and commercial litigation. He is the author of Colorado Quiet Title Actions, referenced in this article ganderson@bfw-law.com, (303) 796-2626. David M. (Merc) Pittinos is an associate at Burns Figa & Will PC specializing in commercial and real estate litigation mpittinos@bfw-law.com, (303) 796-2626.
The 2008 Colorado General Assembly made significant changes to Colorado's adverse possession law. This article examines the law before and after the new statute and offers some thoughts on where this area of the law is headed.
A highly contentious and nationally publicized adverse possession suit in Boulder(fn1) led the Colorado General Assembly to make adverse possession reform a high priority during the 2008 legislative session. House Bill 08-1148 (Act),(fn2) which took effect on July 1, 2008, is the result of that reform effort and has radically altered Colorado's statutory adverse possession law.(fn3) This article summarizes the changes and outlines the potential effect of the Act on future adverse possession suits and claims.(fn4)
The Act amends the adverse possession statute in four fundamental respects:
1. The burden of proof in adverse possession cases filed on or after July 1, 2008 is heightened (regardless of when the adverse possession claim accrued), so that the elements of adverse possession now must be proven by clear and convincing evidence rather than by a preponderance of the evidence.(fn5)
2. For claims where title by adverse possession vests(fn6) on or after July 1, 2008, an adverse possessor must prove all common law elements of adverse possession and establish a reasonable good faith belief that the person adversely possessing (or his or her predecessor) was the true owner of the property.(fn7)
3. The Act gives the court discretion to award damages, if fair and equitable under the circumstances, to the person losing title.(fn8) These damages may include the actual market value of the property lost, as well as the amount of taxes and other assessments (plus interest at the statutory rate) paid by the losing party during the period commencing eighteen years prior to the suit and ending the date a final, nonappealable judgment is entered.(fn9)
4. If a party asserts adverse possession as an affirmative defense to a claim for trespass, forcible detainer, forcible entry, or other similar claim (rather than as a direct claim), the burden of proof remains the preponderance of the evidence standard.(fn10) In this situation, the putative adverse possessor must give up its claim to legal title to and possession of the disputed parcel.
These changes are discussed below.
For adverse possession suits filed on or after July 1, 2008, an adverse possessor must establish his or her claim by clear and convincing evidence rather than by a preponderance of the evidence.(fn11) This change reverses Gerner v. Sullivan,(fn12) where the Colorado Supreme Court held that under CRS § 13-25-127(1), the proper standard was preponderance of the evidence.(fn13) Gerner overruled Raftopoulos v. Monger,(fn14) a 1983 Colorado Supreme Court case holding that one claiming title by adverse possession has the burden of proving the claim by clear and convincing evidence.(fn15)
In Gerner, the Colorado Supreme Court identified standards of proof that had been used in prior adverse possession cases.(fn16) These standards included clear and convincing, competent and adequate, and clear and satisfactory evidence.(fn17) The Court noted that CRS § 13-25-127, which established the preponderance of the evidence standard for civil cases, was designed to eliminate the often arcane and difficult distinctions among different burdens of proof.(fn18) The Court also cited the various burdens of proof in Colorado's adverse possession cases as an illustration of the inconsistencies the statute was designed to address.(fn19)
Proof of a fact by a preponderance of the evidence means proof that leads the trier of fact to find the existence of a contested fact more probable than not.(fn20) Proof by clear and convincing evidence is proof that persuades the trier of fact that the truth of the contention is highly probable, or without serious or substantial doubt.(fn21) The clear and convincing standard falls between the preponderance of the evidence and beyond a reasonable doubt standards. Although the clear and convincing standard should be more difficult to prove than the preponderance of the evidence standard, the practical difference between these standards is not clear in the context of an adverse possession claim.
Adverse possession decisions are inherently fact-specific.(fn22) To establish adverse possession, a claimant must prove multiple elements whose tests are elastic and provide the trier of fact with flexibility and discretion. As a result, it is not likely this new standard will have a significant impact on the outcomes of adverse possession cases, though it may provide an avenue for uncertainty and more litigation. In particular, it will be critical in future adverse possession cases to consider the heightened burden of proof when citing adverse possession appellate decisions decided between 1989 and the first appellate decision under the revised statute, because these cases were decided under the preponderance of the evidence standard. Appellate cases decided before 1989 will be most relevant to decisions under the heightened burden of proof.
The changes to the adverse possession statute went into effect on July 1, 2008.(fn23) The clear and convincing burden of proof applies to all adverse possession cases filed on or after July 1, 2008, even if title vested in the adverse possessor prior to July 1, 2008.(fn24) All of the other statutory changes apply to cases where title vests through adverse possession on or after July 1, 2008.(fn25) Thus, if a party can show that title vested by adverse possession prior to July 1, 2008, he or she will not have to demonstrate good faith as required by the new statute,(fn26) pay the fair market value of the property as compensation to the party losing title,(fn27) or reimburse the party losing title for taxes and assessments levied and paid (plus statutory interest).(fn28)
To avoid the most significant statutory changes, parties asserting adverse possession claims will vigorously seek to establish that an adverse possessor's title vested prior to July 1, 2008. Success on this front will protect clients from the possibility of an award of market value damages and reimbursement for taxes and assessments paid and from the need of establishing that the client or a predecessor reasonably believed in good faith that he or she was the actual owner of the property adversely possessed.
The Act requires that a party prove all common law elements of adverse possession.(fn29) Identifying the common law elements of adverse possession is more difficult than it might seem no single Colorado case clearly defines and analyzes all of the elements, and cases define the list of elements and the tests for each element differently. Additionally, this seemingly innocuous provision potentially could gut three, if not more, judicially created presumptions of adverse possession law.
The most recent appellate decision to state Colorado's adverse possession test is Schuler v. Oldervik.(fn30) Under Schuler, a party must prove that the disputed parcel was possessed for the statutory period of eighteen years and that the possession was hostile, adverse, actual, under a claim of right, exclusive, and uninterrupted.(fn31) Once a claimant demonstrates that he or she has been in actual and exclusive possession of the property for the statutory period, a presumption arises that this possession was adverse; however, for this presumption to arise, the use must be sufficiently open and obvious to apprise a true owner who exercises reasonable diligence that the possessor intends to claim adversely.(fn32)
This test originated in the 1983 Colorado Supreme Court decision Raftopoulos v. Monger.(fn33) Raftopoulos highlights two problems with the current adverse possession test. First, when outlining the elements of adverse possession, the case does not require open and notorious possession. Raftopoulos cited Dzuris v. Kucharik,(fn34) where the Colorado Supreme Court eliminated the element of open and notorious possession, without explanation.(fn35) This is notable because the requirement of open and notorious possession is the backbone of adverse possession law;(fn36) it is designed to prevent surreptitious land theft and ensures an adverse possessor's conduct is sufficient to provide the record owner with notice of the adverse claim.
It is not clear whether the elimination of open and notorious possession as an element of adverse possession was intentional or accidental, because there is no discussion in Dzuris regarding the change. As recently as 2006, the Colorado Court of Appeals required proof of open and notorious possession in a case involving adverse...
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