Chapter 21 - § 21.3 • ESSENTIAL ELEMENTS
| Jurisdiction | Colorado |
§ 21.3.1—In General
To acquire land by adverse possession, one must prove possession of the disputed parcel for the statutory period and that this possession was hostile, adverse, actual, under a claim of right, exclusive, and uninterrupted.36 Whether possession is hostile, actual, exclusive, and adverse is a question of fact to be determined by the trier of fact.37 Actual adverse possession cannot be established by inference or implication.38
§ 21.3.2—Acts of Possession
Possession means a general holding and occupancy, complete dominion over the property to the exclusion of others.39 The possession necessary to establish title by adverse possession need not always be personal possession by the adverse claimant, but in some circumstances may be established by conduct of another which the adverse claimant has authorized.40 Actual possession is established when the property is used in a manner commensurate with its particular characteristics.41
Adverse possession by actual occupancy means to exercise the ordinary use of which the land is capable and such as an owner of the property would make use of it. Thus, the nature of the property is critical in determining what acts by the claimant are required for actual possession.42 The entry of a stranger and the taking of rents and profits by him or her is not an adverse possession.43 The placing of a few minor improvements on property does not necessarily constitute a taking of possession. Thus, the erection of a television antenna on a portion of the property cannot be considered a disseisin of a ten-acre cow pasture.44 Merely surveying and setting monuments is not sufficient.45 The maintenance of lawn, bush, and fences has been held sufficient.46 The practice of grazing cattle on unfenced land is not of itself sufficient to show the type of possession required to perfect a claim of adverse possession.47 However, the seasonal grazing of livestock and the erection of a fence have been held to constitute sufficient continuous possession of disputed land to establish adverse possession.48
§ 21.3.3—Extent of Possession
When the boundaries of land claimed by adverse possession are not established by fences, an adverse claimant may not claim any property not actually occupied for the statutory period.49 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 claimant's dominion over it, is sufficient.50 Actual occupancy is not limited to structural encroachment which is common but is not the only physical characteristic of possession.51 However, adverse possession by actual occupancy without a fence or other barrier does not require constant, visible occupancy or physical improvements on every square foot of the parcel claimed.52 Where one owns several tracts under deeds, patents, or other writings, and claims to the extent of his or her boundaries, he or sheis in actual possession of the adjoining tract, as well as the one upon which he or she lives, if there is no actual adverse occupancy of either one of the tracts.53 The extent of actual possession is a question of fact.54
Possession of the surface does not constitute possession of a severed mineral estate.55
§ 21.3.4—Time of Possession
Actual Possession Not Required
Some limitation statutes do not require that the person claiming the benefit of the statute be in possession of the land during any particular period or at any particular time.
C.R.S. § 38-44-109 (boundary lines): The boundary line statute requires that the boundaries and corners be recognized and acquiesced in for 20 years, but does not require that the person claiming the benefit of the statute be in possession for that period, or at any particular time.
C.R.S. § 38-41-109 (vacant and unoccupied land): By its terms, this section applies to vacant and unoccupied land, and therefore, no possession by the person claiming the benefit of the statue is required. Of course, if another person is in possession, the land is not vacant and unoccupied, and the statute is not applicable.
C.R.S. § 38-39-208 (challenging foreclosure): Although the caption of this section reads "Action within seven years when in possession," the section itself does not mention possession. Therefore, it would seem that possession is not required under this section.56
Possession at Commencement of Action
Under several of the above-quoted statutes, the person claiming the benefit of the statute need not have been in possession for any particular period of time, but need show only that he or she is in possession at the commencement of the action.
C.R.S. § 38-41-116 (contract of sale): A person may not, after the ten-year period prescribed in C.R.S. § 38-41-116, bring an action based on a contract of sale "if such person is not in possession of the real property described in and the subject of such contract of purchase and sale." This section does not require the person bringing the action to have been in possession for the ten-year period, nor does it require that the person against whom the action is brought must himself or herself be in possession in order to rely upon this section to defeat the claim of the person bringing the action.
C.R.S. § 38-41-117 (bond for deed): A person "who is not in possession of the real property which is the subject of such bond or agreement" may not, after the ten-year period prescribed in C.R.S. § 38-41-117, bring an action to enforce the terms of the bond or agreement or any law or custom relating to the bond or agreement. This section does not require the person bringing the action to have been in possession for the ten-year period, nor does it require that the person against whom the action is brought must himself or herself be in possession in order to rely upon this section to defeat the claim of the person bringing the action.
C.R.S. § 38-41-111(1) (recorded official deed): After an official deed has been of record for seven years, no action may be commenced against "a person in possession of real property."57 This section does not require the person against whom the action is brought to have been in possession for the seven-year period, but he or she must have been in possession at the commencement of the action in order to claim the benefit of the statute.58 A tax deed does not give the grantee possession of the property.59 The statute does not require the person bringing the action to have been in possession at any time.
C.R.S. § 39-12-101 (land conveyed by tax deed): Although the statute providing a five-year limitation period for land conveyed by a tax deed does not specifically require possession, it has been held that the person claiming the benefit of the statute must have been in possession when the action commenced.60
§ 21.3.5—Length of Possession
The statutes mentioned below are true adverse possession (or prescription) statutes in that they require possession (or use) for the full limitations period.
C.R.S. § 43-2-201(1)(c) (public highways): This section requires that the roads "have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years."
C.R.S. § 38-41-101(1) (general adverse possession): This section requires "[e]ighteen years of adverse possession."
C.R.S. § 38-41-106 (possession under official or judicial conveyance or order): This section requires "actual residence, occupancy, or possession for seven successive years."
C.R.S. § 38-41-108 (possession under color of title and payment of taxes): This section applies to a person "in the actual possession of lands or tenements . . . who for seven successive years continues in such possession."
C.R.S. § 39-12-102 (mining or placer claims sold for taxes): While this requires only that the action be brought "within a period of two years from the commencement of actual possession," it seems reasonably clear that the person claiming the benefit of the statute must have been in possession for the two-year period.
§ 21.3.6—Exclusive and Uninterrupted Possession
Where possession is required for a statutory period, possession must be exclusive and uninterrupted for the statutory period.61
Exclusive
A claimant's possession need not be absolutely exclusive in order to attain the degree of exclusivity required for adverse possession;62 a claimant need only act as the average landowner would to assert the exclusive nature of the possession.63 For adverse possession to be effective as a means of acquiring title, the possession of the adverse claimant must be such that the true owner is wholly excluded.64 Any sort of joint or common possession by the adverse claimant and the record owner prevents the possession of the one claiming adversely from having the requisite quality of exclusiveness.65 When two parties are in possession, the law judges it to be the possession of the party with the right.66 Mere casual entry for a limited purpose by the record owner is not necessarily sufficient to prove that the use of the property was joint.67
Uninterrupted
Where there is privity of title or estate, the possession of successive adverse possessors may be joined or tacked together so as to be regarded as continuous possession.68 (Tacking is unavailable if the predecessor was not holding adversely.69 ) The tacking of successive adverse possessions of vendor and purchaser of an area not within the premises described in the deed requires that the grantor intend to transfer possession of such area to the purchaser.70 To interrupt an otherwise adverse possession before the statutory period has run, the true owner must assert a claim to the land or perform an act that would reinstate the owner's possession.71 There are several alternate means by which a landowner may take action to interrupt the running of the statutory period. He or she may...
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