Chapter 10 - § 10.3 • COMMON LAW ADVERSE POSSESSION
| Jurisdiction | Colorado |
The statutory requirement that a party prove all common law elements of adverse possession may only seem to codify a longstanding common law rule.30 Determining the elements of adverse possession is more difficult that it would seem, or should be. This is because no single Colorado case defines and analyzes all of the elements, and different cases use different tests and analyze the elements differently. Additionally, this seemingly innocuous section of the amended statute potentially could gut three, if not more, judicially created presumptions of adverse possession law.31 Even with the statutory changes, adverse possession will remain one of Colorado's more complicated and confusing laws.
As defined by courts, the elements seem to overlap, and one act or statement can be sufficient to prove multiple elements. Each element, however, provides a different mechanism for ensuring that a record owner has notice of an adverse claim before it ripens into a transfer of title. The protections prevent surreptitious land theft and ensure that only those adversely possessing in good faith are rewarded with title.
§ 10.3.1—Problems With The Current Adverse Possession Test
For the last 30 years, with a few exceptions, Colorado courts have used a unique test for proving adverse possession: "To obtain ownership by adverse possession, a claimant must establish by a preponderance of the evidence that his or her possession was actual, adverse, hostile, under a claim of right, exclusive, and uninterrupted for the statutory period."32 Colorado's adverse possession decisions collectively provide analysis of each of the elements, but no decision appears to have analyzed the test itself.
A 2006 appellate decision and the 2008 statutory changes highlight the need for Colorado's courts to clearly define what the elements of common law adverse possession actually are. In the 2006 decision, Trask v. Nozisko, the court states, "[T]o satisfy the adverse possession statute, the adverse claimant's open, notorious, continuous, and adverse use or occupancy . . . must have commenced on or before March 9, 1983."33 Then the court recites the elements listed in the previous paragraph above. One test relates to accrual of the statute of limitations by possession sufficient to satisfy certain elements; the other lists the elements of proof. Without explanation, the first test includes a requirement of open and notorious possession; the second does not. The opinion does not explain the discrepancy, but it prompts an important question: Why does the second test not require open and notorious possession as an element of proof?
A recent appellate decision stating Colorado's adverse possession test is Beaver Creek Ranch, L.P. v. Gordman Leverich LLLP.34 Under Beaver Creek Ranch, a party must prove possession that was hostile, actual, exclusive, adverse, under a claim of right, and uninterrupted for the statutory period of 18 years.35 Once a claimant demonstrates that he or she has been in actual and exclusive possession of the property for the statutory period, a rebuttable presumption arises that the claimant's possession was adverse; for this presumption to arise, however, the use must be sufficiently open and obvious to apprise a true owner who exercises reasonable diligence that he or she intends to claim adversely.36 Courts have not explained the relationship between the "open and obvious" standard and the requirement of "open and notorious" possession. Our courts also have not explained what happened to the requirement of open and notorious possession.
Another recent case to similar effect is Hunter v. Mansell.37 Under Hunter, a party must prove that the disputed parcel was possessed for the statutory period of 18 years and that the possession was actual, adverse, hostile, under a claim of right, exclusive, and uninterrupted.38 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 his or her possession was adverse; for this presumption to arise, however, the use must be sufficiently open and obvious to apprise a true owner who exercises reasonable diligence that the possessor intends to claim adversely.39
This test identified above originated in the 1983 Colorado Supreme Court decision in Raftopoulos v. Monger.40 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,41 where the Colorado Supreme Court dropped the element of open and notorious possession and did so without explanation.42 The requirement of open and notorious possession is the backbone of adverse possession law.43 It is the element that 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. This in turn gives the record owner a chance to take action to remove a potential adverse possessor from the record owner's property. The element is critical because adverse possession is not intended as a mechanism...
To continue reading
Request your trial