The Liberty Papers

For anyone who owns property who believes that because they have paid for the property, paid the property taxes, and paid other applicable fees they have all the legal rights to their land, it might be a good idea to take a look at the state and local statutes. For a landlord with several properties, it may be worth seeking a company that offers Strata Management services as they can look into the legalities of everything; going through the legislation can be time-consuming. Don and Susie Kirlin, who bought two undeveloped lots in Boulder, Colorado some 23 years ago, were trying to decide whether to sell one or both lots or build their dream home. During this process, they had a dispute with neighbors Edith Stevens and Richard McLean about a fencing issue. Mr. McLean, who happens to be a former judge, decided to take things to the next level by taking advantage of a little known 16th Century legal doctrine from English common law called “adverse possession” in an attempt to legally steal the property from the Kirlins.

Stevens and McLean said in court that they knew the land was owned by someone else, but they used it anyway for access to their yard, to host parties and to store a wood pile.

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The doctrine, incorporated into Colorado’s Revised Statutes, essentially states that if a person occupies the land owned by another person for long enough, without being challenged or given permission by the owner, the land becomes the property of the person most attached to its use.

In Colorado, the statutory time a property must be occupied before asserting adverse possession is 18 years, and even then, squatters have a heavy burden to prove that they meet all the requirements of the law. In the case of McLean and Stevens, Boulder District Court Judge James C. Klein found the couple had taken possession of their neighbor’s land in an “actual, adverse, hostile, under right of claim, exclusive and uninterrupted” manner – consistent with the language of the law.”

Klein signed an order Oct. 17 demanding that the Kirlins sign over the title to the 12-foot-by-3-foot, semi-circular trail – or about 34 percent of their lot – to McLean and Stevens.

So, if I pile some wood on a vacant lot, make a pathway, and treat it as my own property for 18 years with neither permission nor challenge from the owner, I could have legal rights to as much as 34% of his or her property without paying a cent in taxes let alone compensate the owner? What a deal!

Here we have a judge taking advantage of a couple using his knowledge and their ignorance of the law to steal from them. The Kirlins have since appealed the ruling and have found a great deal of moral support from the community.

This land grab has also received the attention of one state legislator, Rob Witwer, who wants to amend the law in the next session. “We don’t want to have a law on the books that is a vehicle for injustice that allows somebody who is proceeding in bad faith to use that law take somebody’s land,” Witwer explained. Witwer says he wants to amend the law rather than abolish it to protect people who, for example, in good faith accidentally build a home that goes over the property line by a few inches (which seems reasonable to me).

Let this be a lesson to property owners everywhere: if you see your neighbor using your land in any way without your permission, don’t try to be the nice guy, stop them immediately. You must act proactively and don’t count on the government to protect your rights for you. As so often is the case, government is not your friend.