Land-seizure cases no rarity
By Joey Bunch
The Denver Post
Despite the surprise and outrage about a former Boulder County judge taking a neighbor's land through court maneuvers, there's nothing new about adverse possession — or even judges employing the law to net real estate.
Adverse-possession cases are tried routinely in real-estate disputes in every courthouse in the state, according to legal experts. The cases usually involve correcting old surveys or disputes involving fences and property lines.
The law dates back centuries and was designed to prevent absentee land barons from seizing seemingly abandoned property after homesteads had been long established.
"Adverse possession is one of the first things you learn in law school," said real-estate lawyer Willis Carpenter, a lecturer and author who published a review of 350 adverse-possession cases in Colorado.
While legal professionals learned the lesson well, average property owners are aghast.
"It's stealing with a law license instead of a gun," said Will Campbell, a Boulder resident and supporter of Susie and Don Kirlin.
Former Boulder Judge Richard McLean and his wife, lawyer Edith Stevens, won one- third of the Kirlins' vacant land in south Boulder by using the law. McLean and Stevens argued that they had used part of the 4,700-square-foot lot to reach the garden and deck of their home virtually every day for 25 years.
The Kirlins bought the land in 1984 and planned to build a retirement home there.
The case law cited throughout Boulder District Judge James C. Klein's ruling, Smith vs. Hayden, also involved a judge taking a neighbor's property.
At the time of the case in 1989, Donald P. Smith was a state appeals-court judge. He acquired a 20-foot swath the length of a neighbor's half-acre lot that he had used as a driveway to his weekend home in Buffalo Creek.
In another case, former Boulder County Judge Marsha Yeager used the law to seize a 100-foot-long stone fence that was built as an architectural component of a neighbor's stone home on Seventh Street.
Cosima Krueger-Cunningham, whose family had lived on the property since 1950, believes the lawsuit was filed in spite, after years of acrimony with the judge. The judge had already erected a steel fence on her side of the stone fence long before the lawsuit, Krueger-Cunningham said.
"Our lawyer, none of our advisers, no one thought this case would ever go to trial," Krueger-Cunningham said. "On the face of it, it was patently frivolous."
But according to legal experts, taking property by adverse possession is no simple endeavor.
The adverse-possession law requires a person to use the property in a way that indicates obvious and exclusive ownership for a required length of time that varies by state. In Colorado, that means 18 years.
Media reports have characterized McLean and Stevens' use of the neighboring property as doing little more than walking across it and holding occasional parties there.
A series of witnesses, including neighbors who testified during three days of trial, described much more, according to court documents.
Some testified that McLean and Stevens had regularly pruned trees, sprayed weeds, raked thatch and maintained paths, a rock wall and other landscaping — using the property "virtually every day" for 25 years.
Stevens and McLean maintained a woodpile on the property and stored materials on it while they were remodeling a kitchen and restained their home, witnesses said.
Neighbors also testified they had never seen Don and Susie Kirlin, the original owners, on the property.
The Kirlins testified they never visited the area of the lot where those activities took place.
The three cases involving judges heard in their own jurisdictions "tells me we have a very serious problem with, I don't want to say it, but conflict of interest," said Krueger-Cunningham, who lost her fence to Yeager.
After the court ruling, the Kirlins filed a complaint with the Attorney Regulation Counsel citing Rule 8.4, which bans "dishonesty, fraud, deceit or misrepresentation."
"I discussed your complaint separately with six different lawyers in my office," wrote Louise Culberson-Smith, the assistant regulation counsel, in a Nov. 14 letter to the Kirlins. " We all agree that a successful adverse possession claim does not constitute a violation of the Rules of Professional Conduct, including Rule 8.4."
The publicity surrounding the Kirlins' case has absentee property owners nervous, said Hal Noyes, a Realtor in Routt County.
His advice to those who don't plan to develop their property right away: Hire a lawyer.
But such a legal necessity, he believes, "defeats the spirit of what Colorado is all about. It's supposed to be friendly wide- open spaces with good neighbors, not who has the best attorney."
State Rep. Rob Witwer, R-Evergreen, and Sen. Ron Tupa, D-Boulder, are studying possible legislation to raise the bar to prove adverse possession.
Witwer said Friday he was troubled by the Kirlin case but that any legislation would be based on improving the law overall.
"Hard cases make bad law," he said.
Witwer said he is studying adverse-possession laws in Oregon and Iowa, which require "good faith" that someone mistakenly believes he owns the property and prevents anyone from scheming to acquire property they know they don't own.
"If it's possible to prevent people from gaming the system and acting in bad faith to take someone else's property, then that's something we should do," he said.
Such legislative remedies aren't new.
In August, New York Gov. Eliot Spitzer, who forged his political reputation fighting fraud as state attorney general, vetoed changes to that state's adverse-possession law. Spitzer agreed the bill might "seem to be a logical improvement to the law" but said it would lead to "extensive litigation of virtually every adverse-possession claim."
Witwer said fairness and common sense should be part of the adverse-possession law to help level the playing field between experts and everyday property owners.
"If you trespass for 18 minutes, you can be arrested," he said. "If you knowingly trespass for 18 years, you can get the land for free. The law should not allow that to happen."
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Defeating adverse possession
Legal sources say there are ways to protect property:
Diligence: If a landowner finds a pattern of trespassing or an encroachment by a neighbor, he should demand that it stop, then sue, if necessary.
Permission: A landowner who suspects someone of using his property can give that person written permission to do so, removing the opportunity to claim possession is adverse or "hostile."
Insufficient use: A landowner can stipulate that the person used the property but not enough that a reasonably diligent owner would have noticed and had the opportunity to object. The adverse possession must demonstrate sufficient acts to demonstrate a "claim" of ownership.
Insufficient time: A landowner can show a period in which the other person did not use the property. Adverse possession requires "continuous" use of the property for the legally required period, which is 18 years in Colorado.
Nonexclusive use: The owner or others can prove they have used the land just as much as the person claiming adverse possession
The Denver Post
Despite the surprise and outrage about a former Boulder County judge taking a neighbor's land through court maneuvers, there's nothing new about adverse possession — or even judges employing the law to net real estate.
Adverse-possession cases are tried routinely in real-estate disputes in every courthouse in the state, according to legal experts. The cases usually involve correcting old surveys or disputes involving fences and property lines.
The law dates back centuries and was designed to prevent absentee land barons from seizing seemingly abandoned property after homesteads had been long established.
"Adverse possession is one of the first things you learn in law school," said real-estate lawyer Willis Carpenter, a lecturer and author who published a review of 350 adverse-possession cases in Colorado.
While legal professionals learned the lesson well, average property owners are aghast.
"It's stealing with a law license instead of a gun," said Will Campbell, a Boulder resident and supporter of Susie and Don Kirlin.
Former Boulder Judge Richard McLean and his wife, lawyer Edith Stevens, won one- third of the Kirlins' vacant land in south Boulder by using the law. McLean and Stevens argued that they had used part of the 4,700-square-foot lot to reach the garden and deck of their home virtually every day for 25 years.
The Kirlins bought the land in 1984 and planned to build a retirement home there.
The case law cited throughout Boulder District Judge James C. Klein's ruling, Smith vs. Hayden, also involved a judge taking a neighbor's property.
At the time of the case in 1989, Donald P. Smith was a state appeals-court judge. He acquired a 20-foot swath the length of a neighbor's half-acre lot that he had used as a driveway to his weekend home in Buffalo Creek.
In another case, former Boulder County Judge Marsha Yeager used the law to seize a 100-foot-long stone fence that was built as an architectural component of a neighbor's stone home on Seventh Street.
Cosima Krueger-Cunningham, whose family had lived on the property since 1950, believes the lawsuit was filed in spite, after years of acrimony with the judge. The judge had already erected a steel fence on her side of the stone fence long before the lawsuit, Krueger-Cunningham said.
"Our lawyer, none of our advisers, no one thought this case would ever go to trial," Krueger-Cunningham said. "On the face of it, it was patently frivolous."
But according to legal experts, taking property by adverse possession is no simple endeavor.
The adverse-possession law requires a person to use the property in a way that indicates obvious and exclusive ownership for a required length of time that varies by state. In Colorado, that means 18 years.
Media reports have characterized McLean and Stevens' use of the neighboring property as doing little more than walking across it and holding occasional parties there.
A series of witnesses, including neighbors who testified during three days of trial, described much more, according to court documents.
Some testified that McLean and Stevens had regularly pruned trees, sprayed weeds, raked thatch and maintained paths, a rock wall and other landscaping — using the property "virtually every day" for 25 years.
Stevens and McLean maintained a woodpile on the property and stored materials on it while they were remodeling a kitchen and restained their home, witnesses said.
Neighbors also testified they had never seen Don and Susie Kirlin, the original owners, on the property.
The Kirlins testified they never visited the area of the lot where those activities took place.
The three cases involving judges heard in their own jurisdictions "tells me we have a very serious problem with, I don't want to say it, but conflict of interest," said Krueger-Cunningham, who lost her fence to Yeager.
After the court ruling, the Kirlins filed a complaint with the Attorney Regulation Counsel citing Rule 8.4, which bans "dishonesty, fraud, deceit or misrepresentation."
"I discussed your complaint separately with six different lawyers in my office," wrote Louise Culberson-Smith, the assistant regulation counsel, in a Nov. 14 letter to the Kirlins. " We all agree that a successful adverse possession claim does not constitute a violation of the Rules of Professional Conduct, including Rule 8.4."
The publicity surrounding the Kirlins' case has absentee property owners nervous, said Hal Noyes, a Realtor in Routt County.
His advice to those who don't plan to develop their property right away: Hire a lawyer.
But such a legal necessity, he believes, "defeats the spirit of what Colorado is all about. It's supposed to be friendly wide- open spaces with good neighbors, not who has the best attorney."
State Rep. Rob Witwer, R-Evergreen, and Sen. Ron Tupa, D-Boulder, are studying possible legislation to raise the bar to prove adverse possession.
Witwer said Friday he was troubled by the Kirlin case but that any legislation would be based on improving the law overall.
"Hard cases make bad law," he said.
Witwer said he is studying adverse-possession laws in Oregon and Iowa, which require "good faith" that someone mistakenly believes he owns the property and prevents anyone from scheming to acquire property they know they don't own.
"If it's possible to prevent people from gaming the system and acting in bad faith to take someone else's property, then that's something we should do," he said.
Such legislative remedies aren't new.
In August, New York Gov. Eliot Spitzer, who forged his political reputation fighting fraud as state attorney general, vetoed changes to that state's adverse-possession law. Spitzer agreed the bill might "seem to be a logical improvement to the law" but said it would lead to "extensive litigation of virtually every adverse-possession claim."
Witwer said fairness and common sense should be part of the adverse-possession law to help level the playing field between experts and everyday property owners.
"If you trespass for 18 minutes, you can be arrested," he said. "If you knowingly trespass for 18 years, you can get the land for free. The law should not allow that to happen."
--------------------------------------------------------------------------------
Defeating adverse possession
Legal sources say there are ways to protect property:
Diligence: If a landowner finds a pattern of trespassing or an encroachment by a neighbor, he should demand that it stop, then sue, if necessary.
Permission: A landowner who suspects someone of using his property can give that person written permission to do so, removing the opportunity to claim possession is adverse or "hostile."
Insufficient use: A landowner can stipulate that the person used the property but not enough that a reasonably diligent owner would have noticed and had the opportunity to object. The adverse possession must demonstrate sufficient acts to demonstrate a "claim" of ownership.
Insufficient time: A landowner can show a period in which the other person did not use the property. Adverse possession requires "continuous" use of the property for the legally required period, which is 18 years in Colorado.
Nonexclusive use: The owner or others can prove they have used the land just as much as the person claiming adverse possession
