Chapter 23 - § 23.3 • ESTOPPEL

• Jurisdiction: Colorado

§ 23.3 • ESTOPPEL

§ 23.3.1—Equitable Estoppel¹¹²

Under certain circumstances, the true owner of real property may be estopped to assert his or her title to the property.¹¹³ Thus, where the owner of property permits another person to hold himself or herself out as the owner of the property, he or she is estopped from claiming title to the property as against attaching creditors of the other person.¹¹⁴ Similarly, an owner of real property is estopped from claiming title as against a purchaser from a third party where the owner had represented to the purchaser that he or she is not the owner but merely a tenant holding under the third party.¹¹⁵ But the fact that a municipality taxes lots as full lots does not estop the municipality from claiming ownership of a portion of the platted lot.¹¹⁶

The grantor in a recorded but undelivered deed may be estopped to claim the invalidity of the deed if he or she leaves an apparently good title on record and neglects to take immediate measures to recover the land.¹¹⁷

Contingent remainders, executory interests, possibilities of reverter, and powers of termination, although perhaps not generally transmissible by inter vivos transfer, may be transferred if the transfer is made with warranty so that an estoppel is created.¹¹⁸

§ 23.3.2—Estoppel by Deed

Under the doctrine of after-acquired title, a grantor is estopped from asserting a subsequently acquired title as against his or her grantee.¹¹⁹ In Colorado the doctrine of estoppel by deed has been made statutory. C.R.S. § 38-30-104 provides:

If any person sells and conveys to another by deed or conveyance, purporting to convey an estate in fee simple absolute, any tract of land or real estate lying and being in this state, not being possessed of the legal estate or interest therein at the time of the sale and conveyance and, after such sale and conveyance, the vendor becomes possessed of and confirmed in the legal estate of the land or real estate so sold and conveyed, it shall be taken and held in trust and for the use of the grantee or vendee, and said conveyance shall be held and taken, and shall be as valid as if the grantor or vendor had the legal estate or interest at the time of said sale or conveyance.

The Colorado statute does not require that the deed providing the estoppel contain a warranty of title.¹²⁰ The deed works an estoppel and passes title to the grantee the instant the grantor acquires his or her title.¹²¹ The doctrine (but not necessarily the statute...