The physical extent of ownership of real property is defined by the boundary lines of that property and, despite the best efforts of realtors, lawyers and surveyors, it is not always easy to tell where one person’s property ends and another’s begins – leading to boundary disputes. This is particularly true where owners have constructed improvements such as fences on the wrong side of the legal boundaries, or have used someone else’s property as their own for an extended period of time. Boundary litigation is usually complex, requiring reconstruction of historical events and review of old surveys, often going back decades. Other forms of boundary disputes involve incorrect property descriptions and errors in surveying. Typical claims in a boundary dispute include adverse possession and acquiescence.
One of the more typical causes of action in a boundary dispute is known as “acquiescence.” C.R.S. § 38-44-109 provides: “. . . if it is found that boundaries . . . alleged to have been recognized and acquiesced in for twenty years have been so recognized and acquiesced in, such recognized boundaries . . . shall be permanently established.” “Implicit in the enactment of this statute is the proposition that the parties do not know the exact location of the ‘real’ boundary line between their properties.” Hartley v. Ruybal, 414 P.2d 114, 116 (Colo. 1966). If the respective owners of adjoining property recognize and acquiesce in a boundary line dividing their properties for more than 20 years, then that boundary will be binding upon the parties and their successors. Forristall v. Ansley, 462 P.2d 116 (Colo. 1969); Terry v. Salazar, 892 P.2d 391 (Colo. App. 1994), aff’d, Salazar v. Terry, 911 P.2d 1086 (Colo. 1996). In other words, the law creates a presumption that what has been acquiesced in between the parties ripens into a reality after a prescribed period of time. Hartley, 414 P.2d at 117.
Adverse possession is another significant claim in resolving boundary disputes, one that has seen some notoriety in the last ten years in a case out of Boulder resulting in amendments to the statute providing for the claim. One claiming title by adverse possession must prove that possession of the disputed parcel was actual, adverse, hostile, under claim of right, exclusive, uninterrupted for the statutory period of eighteen years. Salazar v. Terry, 911 P.2d 1086-1089 (Colo. 1996); Smith v. Hayden, 772 P.2d 47, 52 (Colo. 1989). C.R.S. § 38-41-101. More recently, these elements have been distilled, making proof of actual possession of the property in a manner hostile to the record owner’s right of possession key to obtaining title by adverse possession. Ocmulgee Properties Inc. v. Jeffery, 53 P.3d 665, 667 (Colo. App. 2001).
The general principles of adverse possession are summarized in Palmer Ranch, Ltd. v. Suwansawadi, 920 P.2d 870, 872 (Colo. App. 1996), cert. denied (Aug. 19, 1996), citing Smith v, Hayden, supra.:
A presumption that the possession is adverse arises after the claimant has demonstrated actual and exclusive possession of the property for the statutory period. In order to merit this presumption, the claimant’s use must be sufficiently open and obvious to apprise the true owner, in the exercise of reasonable diligence, of an intention to claim adversely. Further, a claimant’s possession need not be absolutely exclusive in order to attain the degree of exclusivity required for adverse possession. Instead, a claimant need only act as the average landowner would to assert the exclusive nature of the possessions.
The non-claiming party has the burden of overcoming this presumption. Lively v. Wick, 221 P.2d 374, 377 (Colo. 1950); Riggs v. McMurtry, 400 P.2d 916, 918-19 (Colo. 1965); Welsch v. Smith, 113 P.3d 1284, 1288 (Colo. App. 2005).
The requirement that the possession be both hostile and adverse does not mean that there must be violence connected with the possessor’s entry onto the property, or even any actual dispute as to ownership of the property. Anderson v. Cold Spring Tungsten, Inc., 458 P.2d 756, 575-8 (Colo. 1969). Rather, hostility arises from the intention of the adverse possessor to claim exclusive ownership of the occupied property. Id. An adverse claimant must prove actual occupancy of the claimed property for the full 18-year statutory period in order to take by adverse possession. Smith v. Hayden, 772 P.2d 47, 52 (Colo. 1989).
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 [adverse possessor’s] dominion over it, is sufficient. Smith v. Hayden, 772 P.2d 47, 52 (Colo. 1989). “Once the 18-year period has passed, all remedies, including those for quiet title, ejectment and trespass may be utilized even against the record title holder.” Spring Valley Estates, Inc. v. Cunningham, 510 P.2d 336, 338 (Colo. 1973).
The elements and proof of a claim for adverse possession were notoriously modified by the legislature in 2008 following a controversial decision by Judge Cline in the Boulder District Court. Under C.R.S. § 38-41-101, the burden of proof for a claim of adverse possession is now clear and convincing evidence, and the prevailing claimant must pay the defendant compensation for the property adversely possessed. For adverse possession claims which ripen into fee interest after July 1, 2008, the claimant must also prove that he/she believed that the he/she was the actual owner of the disputed property, and that the belief was “reasonable under the particular circumstances.” C.R.S. § 38-41-101(3)(b)(II).
The court in Haney v. Olson, 470 P.2d 933 (Colo. App. 1970) stated:
The fact that one encroaches on his neighbor’s property . . . thinking the property is his . . . is not controlling on the question of whether the possession is adverse. If it were, the protection of the statue would be limited to those who deliberately set out to steal neighbor’s property [emphasis original] [citation omitted].
470 P.2d. At 934. See, also, Smith v. Hayden, 772 P.2d 47 (Colo. 1989) (there is no requirement that there be a deliberate attempt to steal a neighbor’s property or an actual dispute).
In contrast to the quoted passage from Haney, for adverse possession claims which ripen into fee interest after July 1, 2008, the claimant must also prove that he/she believed that the he/she was the actual owner of the disputed property, and that the belief was “reasonable under the particular circumstances.” C.R.S. § 38-41-101(3)(b)(II). In addition, the burden of proof on the claimant for claims ripening before July 1, 2008, is preponderance of the evidence. In contrast, for adverse possession claims ripening after July 1, 2008, the burden of proof is clear and convincing evidence. C.R.S. § 38-41-101(3)(a).