Chapter 10 - § 10.4 • ACTUAL POSSESSION — THE WHO, WHAT, WHEN, AND WHERE OF ADVERSE POSSESSION

• Jurisdiction: Colorado

§ 10.4 • ACTUAL POSSESSION — THE WHO, WHAT, WHEN, AND WHERE OF ADVERSE POSSESSION

§ 10.4.1—Actual Possession — The Law

Actual possession is possession in fact and contrasts with constructive possession, or possession in law. Constructive possession is based on a deed; actual possession is based on use.⁶² This is the conflict of adverse possession and the decision a court must make: when does actual possession of land trump the record owner's constructive possession of the land by deed?

To support a claim for adverse possession, the adverse possessor's use of the land must correlate with the nature and characteristics of the land. Acts characterizing possession as "actual" depend on the nature and location of the property, the uses to which the land can be applied, and the facts and circumstances of a particular case.⁶³ Proof of actual possession focuses on the type of use (farming, grazing, hunting, etc.) supporting an adverse possession claim and the physical boundaries of that use. The more similar the alleged adverse use is to the typical use of the property, the more likely a court will find that use is actual. Grazing cattle on someone else's property historically used for grazing satisfies the element of actual possession. Hunting on land historically used for grazing might not satisfy the element of actual possession. The ways in which the adverse possessor uses the land also will define the boundaries of the adverse possession.

Actual possession means the ordinary use of which the land is capable and of which an owner would typically make of the land.⁶⁴ It does not mean that an adverse possessor must make use of every square foot of the land adversely possessed.⁶⁵ "Any actual visible means, which gives notice of exclusion from the property to the true owner or to the public and of the [adverse possessor's] dominion over it, is sufficient [to establish actual possession.]"⁶⁶

An adverse claimant may only claim property actually occupied for the statutory period.⁶⁷ In some cases, a fence, barrier, or deed will define the boundary of the adversely possessed property. In other cases, the court must establish the boundary.⁶⁸ The extent of actual occupancy is a question of fact for the trial court to determine.⁶⁹ In establishing the boundary, a court will examine: (1) the land necessarily appurtenant to the use, taking into consideration the location and nature of the property; (2) the uses to which the property lends itself; (3) the uses made of the property by the adverse possessor; and (4) the evidence of visible occupation of the property by those adversely possessing that would give notice of their exclusive and adverse claim to the owner and the public.⁷⁰

The adverse possessor does not have to occupy the land personally. Actual adverse possession may be established by the...