State Senator Ron Tupa sent out an e-mail about a bill regarding adverse possession, the legal doctrine by which non-owners of land can claim ownership of the land after a certain length of use. Clearly such a doctrine has its place, but, equally clearly, it was abused in a recent Boulder case. From what I can tell, the bill that Tupa describes would provide a good corrective to the doctrine. Following are some of Tupa’s remarks:
Most of you know that HB-1148 is a HOUSE bill that I am proudly carrying in the senate… my interest goes beyond simply correcting a glaring injustice… I would support the legislation in any case, but the Kirlin case which brought the issue to the public’s attention also happened in my senate district (and Rep. Levy’s house district) , so I feel somewhat more attached to the issue than most legislators…
Obviously, [adverse possession has] been around for hundreds of years and has worked well both in the past and present in the overwhelming majority of property / boundary disputes between parties… clearly, adverse possession has a place where (typically) one neighbor unwittingly used or encroached upon an adjacent neighbor’s property for many years without objection and, once the error was discovered , a legal mechanism needed to be used to transfer the property from the title owner (the owner of record) to the owner who was actually in possession of the property and using it (in this case, the adverse possessor)…. other instances abound where one property owner places a fence or other structure on what he/she thought was their property and used the land for years thinking it was their property only to find out many years later the fence or structure was, in fact, mistakenly placed on someone else’s property, etc….
These types of cases or instances really don’t rise to the level of public interest… no one gets angry when these types of title transfers occur… if mistakes are made, allowances address the mistakes… usually amicably…
The REAL PROBLEM the public takes issue with, and the reason for HB-1148, are instances where a neighbor or someone else (a trespasser) KNOWINGLY uses someone else’s property for years (18 in our state) and can somehow gain title to the land… the law allows this… and if you delve into the history of adverse possession, the law in fact encourages this to happen… its based on theory that is now hundreds of years old, to “use it or lose it”… the whole idea was to encourage the cultivation/use/productivity of the land – and if the original / true property owner does not and YOU do, then you (the trespasser) should be awarded the land after 18 years of open and continual use (despite the fact that the land is someone else’s)… some citizens have called this law “outdated” or “archaic”… back in the day, there may have been a good reason to do this.
In this day and age, however, when simply owning property is seen as a good thing – an investment that gains value over time – the whole idea of having to put it to use or be fearful it could be taken from you by someone else who will, is a foreign, if not truly outdated concept that most of the general public would disagree with…
As it passed out of the Senate Judiciary Committee yesterday, after July 1 of this year, HB-1148 will do 3 main things:
1. When satisfying the elements of a claim for adverse possession, it will RAISE THE BURDEN OF PROOF for the person asserting the adverse possession claim from a preponderance of the evidence to the higher clear and convincing standard… (I understand this higher standard was in place for many decades prior to a change in 1972… our bill just goes back to the higher standard…)
2. HB-1148 adds as an additional element in an adverse possession case, the requirement that the claimant (the adverse possessor) had a ‘GOOD FAITH BELIEF’ that they were the actual owner of the property… this is the most important change to law we are making, and should go a long way towards reducing the likelihood another Kirlin case will be repeated… 5 other states have a ‘good faith’ standard… Iowa, Georgia, Hawaii, Oregon, and Louisiana.
3. Finally, HB-1148 ALLOWS, but doesn’t require, THE COURT TO AWARD COMPENSATION / DAMAGES to the losing party / owner of record for the loss of the property… the compensation may include a mixture of a percentage of the actual assessed value of the property lost as well as back taxes paid on the property…
The bill passed out of Senate Judiciary yesterday with unanimous support…I am hopeful it will have broad support in the full senate as well…
It looks to me like the legislature is doing the right thing in this case.