Chapter 2 - § 2.3 • ELEMENTS DEFINED
| Jurisdiction | Colorado |
§ 2.3.1—Actual
The claimant must first establish actual possession. Actual possession "is established when the property is used in a manner commensurate with its particular characteristics."50 Actual possession "without a fence or other barrier does not require constant, visible occupancy or physical improvements on every square foot of the parcel claimed."51 Rather, any "actual visible means, which gives notice of exclusion from the property to the true owner or to the public and or the defendant's dominion over it, is sufficient."52
In Anderson v. Cold Spring Tungsten, Inc.,53 the Colorado Supreme Court quoted with approval the following Wisconsin decision clarifying the differences between actual and physical occupancy in adverse possession cases:
Adverse possession without enclosure need not be characterized by a physical, constant, visible occupancy or improved by improvements of every square foot of the land . . . . Actual occupancy is not limited to structural encroachment which is common but is not the only physical characteristic of possession. Actual occupancy means the ordinary use to which the land is capable and such as an owner would make of it. Any actual visible means, which gives notice of exclusion from the property to the true owner or to the public and of the defendant's dominion over it, is sufficient.54
Anderson and subsequent decisions appear to define "actual occupancy" and "actual possession" in the same way and, therefore, presumably view the terms as synonymous.55
Colorado courts have found the following to be sufficient indicia of actual possession:
• Maintaining a drainage ditch and using a portion of the parcel for a parking and picnic area;56
• Using a garage, storing oil behind the garage, and holding barbecues near the garage;57
• Improving, maintaining, and occasionally occupying a cabin located on the property;58
• Maintaining a fence and grazing cattle on disputed land, even though only on a seasonal basis;59
• Procuring sand and gravel from the property, leasing the property to others for gravel operations, and often fishing from the property;60
• Fencing in the disputed property, along with "uninterrupted" pasturing and haying;61
• Fencing in the disputed property, along with seasonal pasturing;62
• Using disputed property for farming and grazing and, when property was not so used, placing the property in a government soil bank and keeping it clear of weeds;63 and
• Sharing a belief among property owners that a fence has marked the true boundary line between properties.64
Generally, "[t]he 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."65
However, Colorado courts have made clear that this is a fact-based determination, and even slight factual variations from cases such as those discussed above have resulted in findings that the claimant did not prove actual possession of the land. For example, mere pasturing or grazing on unfenced land may not be sufficient to demonstrate actual possession because "[i]t is a matter of common knowledge that cattle will invade any unfenced land in search of grass or water."66
Finally, the possession required to establish actual possession need not always be personal possession by the claimant: the conduct of another that the adverse claimant has authorized may be sufficient in some circumstances.67
§ 2.3.2—Adverse
"Adverse use is use that is not permissive."68 Whether possession is adverse is a question of fact to be determined by the finder of fact.69 A presumption that possession is adverse arises after the claimant demonstrates actual and exclusive possession of the property for the statutory period.70 To merit the presumption, the use must be sufficiently open and obvious to apprise the owner, exercising reasonable diligence, of the intent to claim the property adversely.71 The presumption arises only if permissive entry is not at issue.72 If a presumption of adversity arises, the burden is on the challenging party to overcome the presumption.73 As noted above, commentators have questioned the continued validity of this presumption following the 2008 statutory modifications,74 but at the time of this writing no published case appears to have considered the issue and therefore the presumptions appear to remain good law. The claimant whose initial entry was adverse, whose possession remains adverse, and who can meet the other elements for the requisite period, will generally make a successful claim.
Contrary to adverse use, permissive use is use that is not adverse. Colorado courts have declined to recognize adversity where claimants received oral permission to use the property,75 received written permission to use the property,76 and used the property as a lessee.77 Where the possession relied on was initially permissive, there is a presumption that the possession continues to be permissive unless and until notice or explicit disclaimer is given to the owner by the claimant.78 There is no presumption that the possession is permissive in cases of claimed adverse possession between close family members.79
Finally, a concession of record ownership does not necessarily demonstrate an intent not to possess adversely. In both Smith v. Hayden80 and Schoenherr v. Campbell,81 the Colorado Supreme Court recognized that, where the claimants knew record title was not in their names, this fact actually strengthened their claims of adverse use. By contrast, however, in the earlier case of Segelke v. Atkins, the Colorado Supreme Court held that the claimant's acknowledgement that record title was not in his name interrupted the continuity of his adverse use and destroyed his claim for adverse possession.82 Moreover, although at the time of this writing no published case has addressed the issue, the General Assembly's 2008 statutory modifications may come into play as well: how is one to prove a reasonable and good faith belief that the claimant is the true owner of the property while simultaneously conceding the record ownership of another?83 Practitioners facing this issue should carefully review the latest decisions in this area and proceed with caution.
§ 2.3.3—Hostile
Hostility in a claim of adverse possession arises from the claimant's intent to claim exclusive ownership of the property occupied.84 It does not require a showing of force or actual dispute.85 There is no requirement that there be a deliberate attempt to claim the land of another.86 All that is required is for the claimant to occupy the property adversely to the rights of the record holder.87 Hostile intent is a question of fact to be determined by the trier of fact.88 It is determined from the declarations of the parties and reasonable deductions from the facts.89 "Generally, possession of real property by the agent, tenant, grantor, mortgagee, or family member of the owner is not hostile" unless there is actual or constructive notice of hostility "by the exercise of control over and use of the property inconsistent with the rights of the owner."90
Colorado courts have found the following facts sufficient to demonstrate hostility:
• Placing improvements on the disputed land including a fence, lawn, trees, sprinkler heads, a concrete walkway, framed sheds, and concrete trash pads that were contrary to any other use of the property;91...
• Using the disputed parcel as if it were the claimants' own, and placing an iron pipe to mark what was believed to be the corner between the lots;92
• Restricting the general public's use of the property and posting the property as not open to parking without payment of a fee;93
• Entering the property with the belief of actual ownership to it, despite the claimants' subsequent failure to fence the property or mark the boundaries;94
• Placing a small water spigot and gas meter, and storing equipment on the property;95 and
• Constructing a new fence along the old fence line, making improvements to the
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