Court rules on ownership of 97/10,000ths of an acre

By Paul E. Pfeifer
Ohio Supreme Court Justice

Throughout history there have been countless border disputes, great and small. Germany and France battled over Alsace-Lorraine; Canada and the United States once got testy about the border of Alaska; even Ohio and Michigan squabbled over Toledo and surrounding territory. Now we can add to that list the Evanich-Bridge boundary quarrel.

It all began in 1965, when William Evanich bought a piece of land in a residential subdivision with his wife, Roselyn. The Evaniches built a house on the property and began landscaping in 1967.

Before he started landscaping, Evanich surveyed the property by running string from a survey stake at the rear of his lot to a stake at the front. Evanich assumed that the resulting line marked the edge of his land.

With his boundary defined, Evanich installed a split rail fence, decorative railroad ties, stone blocks, bushes, flowers and at least one tree. All of that landscaping was in place when, in 1977, Steven and Margaret Bridge bought the property next door.

In 2002, twenty-five years after moving in, the Bridges had their lot surveyed and discovered that Evanich's 1967 self-survey had included 97/10,000ths of an acre that belonged to the Bridges. Evanich had unwittingly landscaped along what he assumed was his lot line.

Upon making this discovery, the Bridges sent a letter to the Evaniches requesting removal of the split rail fence and other landscaping. The Evaniches refused, and instead filed a complaint in court to obtain a declaration of their rights through adverse possession.

What is adverse possession? It's a legal doctrine that says a plaintiff -- the Evaniches in this case -- can acquire legal title to another person's real property if he or she proves exclusive possession and open, notorious and continuous use adverse to the owner for a period of 21 years.

At trial, William Evanich testified that he had intended to landscape his own property only, and that he would not have planted where he did had he known that the property belonged to his neighbors.

The trial court concluded that the claim for adverse possession was proven by a preponderance of the evidence and judged in favor of William and Roselyn Evanich. But the Bridges appealed, arguing that the trial court had applied the wrong standard of proof.

The case was sent back to the trial court to apply the standard of clear and convincing evidence, but again the trial court ruled in favor of the Evaniches. So the Bridges appealed again, this time arguing that William and Roselyn were required to show that they took possession of the land with the intent to claim title to it.

Despite the Bridges' argument, the court of appeals affirmed the judgment of the trial court. After that, the border dispute came before us -- the Supreme Court of Ohio -- for a final review.

The doctrine of adverse possession is well established in Ohio, with Supreme Court cases on the subject dating back to the 1800s. Time and again we have determined that in order to succeed in acquiring title by adverse possession, the claimant must show exclusive possession that is open, notorious, continuous and adverse for 21 years. But the issue here is how the claimant's intent relates to the legal element of adversity.

We have never said that a claimant must establish subjective intent to acquire title to someone else's land in order to succeed in an adverse possession claim. Rather, the adversity element has been explained this way: "It is the visible and adverse possession with an intent to possess that constitutes the occupancy's adverse character, and not the remote motives or purposes of the occupant."

In a case on this subject from 1866, our court addressed the precise issue of whether the element of adversity requires that a person have the actual motive, the intent, to claim the property of another.

In that 1866 case, the court considered instructions that were given to the jury on adverse possession that stated: The person seeking adverse possession "must have knowingly and designedly taken and held the land... Occupancy by accident, or mistake, or ignorance of the dividing line, is not sufficient."

But that instruction was rejected as unprecedented, erroneous and "mischievous in its operation." Instead, the court in 1866 reaffirmed that possession is what matters.

The 1866 court said that if the adverse possessor "occupies what he believes to be his own, a similar possession gives him a title. Into the recesses of his mind, his motives or purposes, his guilt or innocence, no inquiry is made. It is for this obvious reason that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote views or belief of the possessor."

As Justice Judith Ann Lanzinger wrote in our majority opinion, "In other words, title may be acquired 'irrespective of any question of motive or of mistake.' In a claim for adverse possession, intent is objective rather than subjective in determining whether the adversity element of adverse possession has been established, and the legal requirement that possession be adverse is satisfied by clear and convincing evidence that for 21 years the claimant possessed property and treated it as the claimant's own.

"This has been the law in Ohio for over 140 years, and we are unwilling to alter a rule that has successfully directed the application of the doctrine of adverse possession for so long."

The court of appeals concluded that the Evaniches acted in a way consistent with true ownership by installing landscaping that included railroad ties, the fence, the tree and all the rest. The court determined that the Evaniches possessed the necessary intent based on their exclusive control over the property for 35 years.

We saw no error in the court of appeals' conclusion that the Evaniches took possession of the disputed property via adverse possession. We therefore affirmed -- by a seven-to-zero vote -- the judgment of the court of appeals.

Thus ends another of history's border disputes.

EDITOR'S NOTE: The case referred to is: Evanich v. Bridge, 119 Ohio St.3d 260, 2008-Ohio-3820. Case No. 2007-0863. Decided Aug. 5, 2008. Majority opinion written by Justice Judith Ann Lanzinger.

Ohio Supreme Court Justice Paul E. Pfeifer is a Bucyrus native.

Boulder's infamous 'land-grab' case settled

Kirlins say they will only have to cede 12 percent of south Boulder lot



By Heath Urie
Daily Camera

Two Boulder neighbors have settled a land dispute that made national headlines and prompted state legislators to change the law that allowed it to happen.

Don and Susie Kirlin, who originally lost 34 percent of one of their two vacant lots to neighbors Richard McLean and Edith Stevens, agreed to cede about 12 percent of the million-dollar property instead, the couples announced Tuesday.

“This settlement allows the parties to put this long-standing and difficult dispute behind them,” they wrote in a 48-word joint statement.

Under the terms of the agreement, which still must be sent from the Colorado Court of Appeals to Boulder District Court Judge James C. Klein for final approval, McLean and Stevens will own a five-foot strip of the Kirlins’ next-door lot, widening to nine feet at the north end of the property.

The total transaction equals 540 square feet of the 4,659-square-foot lot.

The settlement ends a high-profile case that divided the south Boulder neighborhood after Klein’s October 2007 decision to award the land to McLean, a former judge and Boulder mayor, and Stevens, an attorney. The couple sued for the Hardscrabble Drive property under the centuries-old law of adverse possession, which allows trespassers who openly use land for 18 years to claim it as their own.

The case, which the Kirlins had appealed, prompted public protests; death threats against McLean and Stevens; and an unsuccessful effort to fight Klein’s reinstatement in this month’s election. It spurred changes to Colorado’s adverse possession law, and spawned a new law prohibiting judges from hearing cases involving current or former judges from the same district.

Both couples called the settlement agreement a win-win situation: the Kirlins will be able to sell the property with enough land left to allow a house to be constructed on it, while McLean and Stevens will retain access to a path around the side of their house.

“I would have never done something like this to my neighbor, however I am happy that it’s finally over,” Don Kirlin said.

Stevens said the settlement ends a tense chapter in the neighborhood’s history.

“I think that the community will be relieved to see that the case is settled,” she said.

‘A fully buildable lot’

Although they’re still disappointed the lawsuit ever happened, the Kirlins said that having at least some of the valuable land back is satisfying.

“It’s cost me over $400,000” to fight the lawsuit, Don Kirlin said, “and after spending it, I only get to lose 12 percent of my property that I already owned.”

He said the property, with its expansive view of the Flatirons, is now for sale — listed at $925,000. A house with a footprint as large as 1,540 square feet could be built on it, he said.

“The end result is, and the most important part to me, is that it allows a fully buildable lot,” Don Kirlin said.

The investment, he said, was always meant to finance the couple’s “dream home,” which they still intend to build on their adjacent lot.

The terms of the settlement include provisions that allow construction crews to use the piece of the lot owned by McLean and Stevens for access to the site, but whoever buys the property must agree to restore the McLean-Stevens land to its original state after construction.

Don Kirlin said his neighbors approached him with the offer to settle the longtime dispute.

“I think their gut feeling was, and their legal counsel advised them, that there was a good chance they would lose in the court of appeals,” he said.

Kirlin said his neighbors stand to gain more from the deal than just land.

“Their friends abandoned them,” Don Kirlin said. “They want to try and attempt to regain some of their stature in the community.”

‘I don’t know why it took them so long’

McLean and Stevens said they had always hoped to settle the case, which was prompted by construction of a fence that cut off a path they had used unquestioned for 26 years.

They have said on several occasions that they tried to resolve the dispute without resorting to a lawsuit.

“You always are trying to settle the case without raising the level of antagonism, without incurring a lot of attorney’s fees, and we had hoped from the very start, before we filed the lawsuit, that we would be able to settle the case,” Stevens said.

The couple has long said their lawsuit was about preserving their right to use the land to access their own backyard, based on their two decades’ of previous use.

“I think from the very start, our goal was to retain access to the back of our property and to protect the trees and shrubs that we planted there,” Stevens said.

McLean echoed his wife, saying he wished the resolution could have come sooner.

“I’m quite satisfied with it, because we made the offer nearly a year ago,” he said. “I don’t know why it took them so long.”

Negotiations have been ongoing for more than a year, and the Kirlins said previous terms weren’t acceptable them.

‘Nobody had to lose this case’

In the year since the Boulder case gained national attention, Colorado lawmakers decided to revamp the law of adverse possession. As of July 1, the law gives judges the power to force adverse possessors to pay for the land they win, and to compensate the original owner for back property taxes and interest.

The case was unique for the way it affected the public, said Andy Low, attorney for the Kirlins.

“Out here in the West, people feel very strongly about property rights,” Low said. “It touched on a lot of people’s concerns about their own property.”

He said both couples were eventually able to rise above the “bitterness” that comes with lawsuits like this one, and reach a compromise.

“Ultimately, I think the headline for me is the case has a happy ending,” Low said. “Nobody had to lose this case, which is very unusual.”

Kimberly Hult, attorney for McLean and Stevens, agreed.

“This settlement should resolve the dispute in its entirety, including the appeal,” she said.

Losers in Boulder land dispute file appeal

PRIVATE IMPROPERTY
'It's unfair what happened to us. We're going to fight on'













© 2008 WorldNetDaily.com

A Boulder couple who watched a judge give nearly one-third of their building lot in a pricy residential development to a neighbor who claimed using it has filed an appeal of the decision.

The Denver Post said Don and Susie Kirlin are attempting to reclaim the nearly one-third of their residential property in Boulder that a neighbor won in October in a court ruling in an "adverse possession" lawsuit.

The neighbors, former District Judge Richard McLean, and wife Edith Stevens, a lawyer, were awarded ownership of the chunk of property after arguing they had maintained the property for more than 25 years.

Colorado's adverse possession law allows those who "openly and notoriously" maintain property that is not their own for many years eventually to claim title to it.

The appeal focuses on arguments by the Kirlins that McLean and Stevens failed to meet the burden of proof needed to be awarded ownership, and that Judge James Klein, who issued the controversial ruling, erred in his decision.

A significant part of the foundation for the decision was the allegation by McLean and Stevens that they built and used a dirt path on the Kirlins' property for many years.

The appeal contends that Klein failed to determine the date of construction for the path, and since witnesses offered differing accounts, it might not substantiate the claim by McLean and Stevens.

The division of the small residential lot, according to the Kirlins, makes the remainder too small for the retirement home the couple hoped to build there.

The Kirlins estimate their losses in the case at about $800,000.

The legal action had generated considerable criticism, but the president of the Boulder County Bar Association, Sonny Flowers, suggested those who object to the results are "dumb, short-sighted, lacking in perspective or just plain wrong."

The Boulder Camera also noted that the case wasn't the first time a former Boulder judge used the law to win land from a neighbor.

"Earlier this year (2007), the secretary of the Indian Peaks chapter of the Sierra Club and his wife lost about 100 square feet of their property to Marsha Yeager, a former judge, and her husband, John Yeager," the newspaper reported.

That case involved Kirk Cunningham and his wife, Cosima Krueger-Cunningham, who were concerned about property lines, and began a process to have them verified. Their neighbors, the Yeagers, instead argued that since they had "taken the responsibility" for a rock wall, it and the land on which the wall sits should belong to them. The court battle took five years, and they won in the 2007 conclusion.

"The principal lesson for the public in all this is, in a place like Boulder where property values are skyrocketing, you need to make sure you know where your property lines are and keep your neighbors on notice – preferably with legal help," Cunningham told the paper.

The latest dispute already has been enshrined in Boulder lore by Don Wrege, a Boulder singer and songwriter, who wrote a song titled, "Edie and Dick (The Grinch Theme).

Stevens also told National Public Radio she and her husband are feeling "pretty beleaguered" by the fierce public opposition to the couple's case, which overcame testimony from the Kirlins that they paid taxes of about $16,000 a year, plus $65 a month homeowner association dues, to maintain the undeveloped land.

This land is their land -- now

A Colorado couple use a rarely invoked law to take part of a neighbor's lot. The squatters' rights case sparks outrage.
COURT OF PUBLIC OPINION: Susie Kirlin looks over signs stapled to a fence on property that she and her husband have owned for more than 20 years. Part of the land now belongs to neighbors who claimed it as their own under Colorado's adverse possession law.

By DeeDee Correll, Staff Writer
Los Angeles Times

BOULDER, COLO. -- For more than 20 years, a retired judge and his lawyer wife trespassed on a vacant lot next door to their home.

They planted a garden there and stacked their firewood. They say they held parties there and walked the land so often they wore a path in the grass.

Last year, Richard McLean and Edith Stevens claimed the land as their own under Colorado's adverse possession law, once known as squatters' rights.

In October, a district judge awarded them one-third of the lot, which its owner values at $1 million.

Although the couple won in a court of law, they have not fared well in the court of public opinion in this university town, where the case has become a cause celebre, sparking a protest and calls for change to the law.

The doctrine of adverse possession, which says a person can gain possession of property after using it without challenge by the owner for a certain length of time, isn't a new or obscure legal doctrine. Still, its application in this case has the residents of this university town fuming.

"This scares the hell out of landowners," said Don Kirlin, the man whose property was taken away. He said he and his wife first took it as a joke when he heard of the former judge's designs on their land.

In 1984, Kirlin, a commercial airline pilot, and his wife, Susie, a former teacher, bought two adjacent lots on the southern edge of the now-pricey city. They lived in a home a short distance away, but hoped to someday build their dream house on their vacant land, which abuts city-owned open space, a rolling expanse of ponderosa pine and native grasses.

They frequently walked their dogs past their vacant land, but say they never saw any sign that anyone was using it.

Nor did they think to worry about such a thing, Susie Kirlin said. After all, they paid their property taxes and homeowner fees. They sprayed for noxious weeds and repaired fences. What else did an owner have to do?

That attitude speaks to misconceptions about property ownership, said Eduardo Peñalver, a law professor at Cornell University.

"There's a mythology of land ownership -- that if you own land, you can do anything you want," he said. Property rights are limited, he said. "This is one of those limitations: If you're not vigilant, it could be taken."

The law is based on a philosophy that land should be used, Denver real estate lawyer Willis V. Carpenter said. "If you don't use it and someone else does, they'll end up owning it," he said.

Every state in the country has an adverse possession law, although the requirements for bringing a case differ widely. For example, the length of time that a person must show uninterrupted use of another's land varies from five to 30 years.

In California, people who want to claim someone else's land must not only use it for at least five years, they also must pay property taxes on it. That's also the case in a handful of other states.

One reason for that requirement is to alert the owner that someone is using the property. "Most courts are not disposed to easily give land away," said Spencer W. Weisbroth, a San Francisco lawyer.

Because of that requirement, he said virtually all California cases fail.

The majority of cases involve minor boundary encroachments in which neighbors aren't sure where the borders of their land are, Peñalver said. Most are resolved without litigation; the owner issues a warning and the encroaching neighbor withdraws. "It's a rare case that gets litigated."

It's an even rarer case that makes the news.

That happened this year in New York, when a land dispute prompted the state Legislature to pass a law preventing someone who knowingly occupies someone else's land from acquiring it. The governor later vetoed the law, saying efforts to prove the person's state of mind would lead to more litigation.

Most states don't make a distinction between people who unknowingly occupy another person's land and those who do it deliberately, Peñalver said. But many people are more understanding when someone unknowingly uses someone else's land, he said.

Public reaction also depends on who's claiming the land.

In a highly publicized case in London, a homeless man this year won ownership of a small plot in a tony neighborhood where he had lived in a shack unchallenged for 21 years. He was seen as a sympathetic figure.

That wasn't the case in Colorado, where Boulder District Judge James C. Klein -- who has served since 2005 in the same judicial district where McLean served from 1981 to 1997 -- ruled the couple had demonstrated that their attachment to the land was "stronger than the true owners' attachment."

"Whereas defendants were unaware of plaintiffs' use of the disputed land during virtually their entire 22-year period of ownership, plaintiffs have efficiently used the land on a daily basis," Klein wrote in his opinion.

The judge granted McLean and Stevens one-third of the lot next to them. That decision rendered it too small to sell or to build a home on, Kirlin said.

The Kirlins and McLean and Stevens each say that they made efforts to settle the matter -- but that the other party would not accept the offers.

In addition to the specifics of the dispute, the Kirlins take issue with the application of adverse possession law itself, saying it has its place but wasn't intended for cases such as this.

Many in the community seem to agree. When the news hit, residents reacted in an Internet-fueled fury. Bloggers ridiculed McLean and Stevens as land-grabbers who used their knowledge of the law to steal from an unsuspecting neighbor.

Last month, more than 200 people flocked to the property, where they hoisted signs with slogans such as "Thou shall not steal" and shouted "shame" and "thief" at the McLean/Stevens home, the Denver Rocky Mountain News reported.

State Sen. Ron Tupa, a Democrat from Boulder, said he had received a flood of e-mails about the case; he and Rep. Rob Witwer, a Republican from Evergreen, intend to propose a change to the law, although they haven't settled on the specifics.

"If the law allows this kind of taking, then it needs to be changed," Tupa said.

A change in state law wouldn't affect the Boulder case, which the Kirlins say they intend to appeal. Regardless of the outcome, they say they still want to build a home on the second lot that was not affected by the decision, where Susie Kirlin recently stapled a sign to the fence.

Facing the home of McLean and Stevens, it reads, "You will never enjoy a stolen view."

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."

--------------------------------------------------------------------------------

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

Retired judge: This land is my land

PRIVATE IMPROPERTY
Jurist rules in favor of colleague,
snatches $1 million parcel

© 2007 WorldNetDaily.com


Judge James Klein

A judge has ruled in favor of another judge – now retired – in an unusual "adverse possession" land dispute in pricey Boulder, Colo., giving the retired judge a large part of his neighbor's $1 million parcel of land for a pathway to his backyard.

The recent ruling came from James Klein a judge in Colorado's 20th Judicial District covering Boulder, and was in favor of Richard McLean, who retired from the judiciary in Boulder several years ago.

The loser in the case was Boulder resident Don Kirlin, who is publicizing his situation on the landgrabber.org website. He and his wife Susie owned the land in question for more than two decades, and he appeared recently on the radio talk show hosted by Dan Caplis and Craig Silverman on Denver's KHOW radio.

The result of the lawsuit was that Klein awarded to McLean ownership of 34 percent of a residential lot valued at an estimated $800,000-$1 million in a Boulder subdivision based on McLean's allegations he and family had, under the state's "adverse possession" law, used the property for their own uses in a "notorious" fashion and without permission of the owners for more than 18 years.

Amy Waddle, a spokeswoman with Colorado's 20th Judicial District, said, "The judges don't comment on pending cases. I believe they are considering appeal."

On the radio show Kirlin explained his shock when the land on which he's paid taxes of about $16,000 a year, plus $65 per month homeowner association dues, on which he's sprayed for weeds and repaired fences, suddenly was made unusable by Klein's decision.

"This is a foundation … of our country," Kirlin, an airline pilot, said. "You should be able to buy property and own it."

He said he and his wife purchased the property, which actually included two residential lots, in southwest Boulder at the foot of Colorado's Flatiron mountains, in the 1980s, but never developed it because of his busy career and raising of family. They lived in another home just a few hundred yards away, and besides paying the annual property taxes, attended the property with fence repairs and weed-spraying requirements, he said.

He passed it regularly en route to his hikes into the mountains, and never saw any "encroachments," he said. The law under which Klein gave the property to McLean requires someone to "possess" property by using it, without permission of the owner, continuously for 18 years, and most commonly comes up when a building built before mapping technologies were accurate, extends onto another parcel of land.

Kirlin said he discovered there was a problem when a neighbor told his wife at a high school football game McLean was planning a legal action to take some of the parcel, which is only about 60 feet by 80 feet.

He said the family discussed the situation, but seeing no evidence that such a claim could be substantiated, decided to go ahead with a fencing project on the parcel. McLean, however, told the contractor when he arrived to stop the work on Kirlin's property, and within a little over two hours on a Friday evening had a court order to that effect, Kirlin said.

During the trial McLean testified he had worn a path 20 feet onto Kirlin's land to obtain access to his backyard, but Kirlin, a former member of the homeowners' association board and the HOA manager testified that was incorrect.

Klein then simply ruled in favor of McLean, which means 34 percent of the parcel, or about 1,500 square feet, is given to the retired judge, Kirlin said.

He said he had approached the former judge when he confronted the fencing contractor and asked how the issue could be resolved. "His only response was, 'We're going to start an action,'" Kirlin said.

The costs of the lost fight – so far – have surpassed $120,000, and Kirlin said he plans to appeal, but also was given more bad news in just the past few days.

"We just got notified a couple days ago they want us to pay their court costs," he said.

"Under a best case scenario, if we appeal, and we get back the land we already owned, it will cost us $200,000 and it will take us three years," he said.

Caplis said he had known the two plaintiffs, McLean, and Edith Stevens, a former chairman of the Democratic Party in Boulder County, for years.

"I can't understand why either of them would be willing to do something so wrong," he said.

Kirlin said a number of issues were suspicious during the trial. "They said they've had these big political parties, engagement parties, delivery vehicles using my lot over the years, and yet, over 25 years they didn't have one picture of all of these activities," he said.

"I don't care if you're ACLU or John Birch you shouldn't have your property taken by people who trespassed on it," Caplis said.

Klein's opinion concluded that McLean had a "stronger" attachment to the land than the actual owners.

Colorado state website notes that Klein got his law degree from the University of Denver and went into the state's employment as an assistant attorney general focusing on worker's compensation and unemployment issues. He then worked as an administrative law judge and then moved to the 20th Judicial District bench.

McLean confirmed in court he knew the land belonged to someone else, but he used it anyway to reach his backyard and hold parties.

McLean has declined media requests for comment and his attorney declined comment, confirming that an appeal is expected.

An online forum on the issue allowed Boulder-area residents to express mostly one-sided opinions:

"Welcome to the USSA," said Travis McGee. Added "freekitty," "This is so underhanded, they can't find a rock to get under."

Obscure law that benefits squatters criticized

Land Disputes: The Riverside County tax collector targets the state’s adverse possession process.

By KIMBERLY TRONE
The Press-Enterprise [Riverside, CA]
San Bernardino and Pass Edition

Escalating tensions in a Wildomar property dispute have spurred a Riverside County official to seek changes to an obscure state law that allows squatters to take land from unsuspecting owners.

"If someone is squatting on a piece of your land or someone is in your house, you usually can call the sheriff and the government comes to help you out," Treasurer-Tax Collector Paul McDonnell said.

That's not always the case with adverse possession, a law rooted in Anglo-Saxon history that McDonnell said has created "a cottage industry of people who are attempting to capitalize on the weakness of others."

Almost every state allows adverse possession in some form. California law allows an individual to acquire title to a property if they've fenced it, openly occupied it without permission and paid property taxes continuously for five years.

McDonnell, president of the California Association of County Treasurer-Tax Collectors, said he is asking his organization to support legislation that would allow tax collectors to return payments to those who are using adverse possession to "squat on the county property-tax system."

"We need to be given clear authority to intervene on behalf of the legitimate taxpayer," McDonnell said.

Right now, McDonnell said, the county must send a letter to the title owner and the non-owner asking the individuals if they want a refund.

McDonnell said a change in the tax code would allow the county to immediately peel off the payment from the adverse possessor and return it with no questions asked.

McDonnell said he was surprised to discover there are 20 cases in Riverside County where adverse possession is being used in an attempt to take title to properties.

San Bernardino County Assistant Treasurer-Tax Collector Annette Kerber said adverse possession has been an issue in her county as well.

"Sometimes people will come right out and say they are trying to pay taxes to acquire property through adverse possession," Kerber said.

Even though the title holder has already paid their taxes, there are times the non-owner will insist his payment be applied. The money will be refunded, but Kerber said the non-owner has a receipt of property-tax payment.

Attorney Spencer Weisbroth, whose San Francisco firm's Web site details how adverse possession works, said the process is getting tougher to execute.

Most people who are attempting adverse possession fail because they fall short on one or more of the requirements -- usually the payment of taxes, Weisbroth said.

Neighbors' Property

Earlier this year, a half-dozen Wildomar landowners complained to county supervisors that Jeff Downtain, 47, had erected a large fence and installed guards to bar them from their rural property. Some said they had been threatened. "No trespassing" signs have been posted outside the large compound where the Downtains live with their six children.

Downtain said he ran a free food program for the needy until October when code enforcement and sheriff's deputies raided the property. He also said he runs the Jesus People ministry from his home.

Last month, county supervisors gave the Downtains and the six owners of land within the fenced area 90 days to clean up their properties. But the six owners are unable to gain access.

Senior Code Enforcement Officer James Monroe said if the Downtains don't clean up the lots, the county will get a court order and do it for them. That would include razing the unpermitted house where the Downtains live, Monroe said.

Monroe estimated the cost of cleanup to be between $35,000 and $50,000.

District Attorney Rod Pacheco's office is conducting a criminal real-estate fraud investigation into the Downtain family's efforts to take their neighbors' land.

Downtain said he has broken no laws. He questioned why a criminal investigation is under way when the issue of adverse possession is a civil matter that should be settled in civil court.

Fenced Off, Frustrated

Frustrated property owners, some with mounting legal costs, say their hands are tied.
"The Downtains' whole MO is to prey on the elderly, pay their (property) taxes, put their names on the title as a tenant in common, and take control of these people's properties," real-estate agent Gregory Higgins said.

"They will confront you. They are violent people," said Higgins, whose elderly client's property has been fenced off.

Downtain denies threatening Higgins or any of the other neighboring property owners.

Riverside resident Barbara Innes tried to list two lots for sale in 2004, only to be told by her mortgage company that there was a "cloud" on the title. The "cloud" turned out to be a claim placed by Hidden Haven Christian School, a home-school run by the Downtains for their children.

Since then, a surveyor and a real-estate agent both quit, claiming they were threatened. Innes said she doesn't have the means to fight.

One Wildomar property owner, Martin Hicks, has sued the Downtains. Hicks, who is represented by his attorney son, Robert Hicks, is scheduled to be back in court on the issue today.

The Hicks say the Downtains scoped out the vacant property around their home, created false business identities and filled in a false blank grant deed purporting to convey the vacant property to themselves, according to court records.

The Downtains maintain in court filings that they are entitled to the property.

Another property owner, Karen Brown, said her attorney advised her it could cost up to $25,000 for her to wrestle her Wildomar property back, although she still has title to it.

She and her sister-in-law Letty Brown own about an acre-and-a-half between them, all of which has been fenced off and loaded up with piles of wood and an old boat.

"Nobody wants to get into anything like this," Innes said. "He's a lawbreaker and we're the ones being penalized."

Longtime Resident

Downtain said his family, which homesteaded 15 acres in the 1920s, has lived on the property for decades.

As he walked among the shady oaks he's known since childhood, Downtain said he could probably have the area cleaned up in 10 days. He passed an old Air Stream trailer, slightly askew, with a rusting screen flapping in the breeze.

There is no electrical service but Downtain said the sun and wind fuel batteries that provide power to the family's home.

Monroe said living conditions on the property are dangerous.

The accumulation of stuff is a testament to his family's uninterrupted presence on the properties over three generations, Downtain said. He called the other property owners "absentee landlords" who've never cared for the land.

"I am a prudent person. I am not a raging maniac," Downtain said.

He described his struggle as a fight for the future of his children.

Downtain said the planned widening of Bundy Canyon Road and a subdivision proposed nearby worries him.

"This is the evidence that I have been here all my life. Nobody has made any attempt whatsoever to maintain this subdivision except my family," Downtain said. "All my life, nobody has ever been around here saying anything to anybody."