Posted on 11/25/2007 6:31:07 PM PST by joanie-f
I don’t think they expected this kind of attention.
Jeepers... Thanks for the ping.
No. the Wiki explaination is bad. All that's required is that the possessor use it openly and notoriously, and that the owner did nothing to stop it. Only te following part nof the Wiki explain is good:
"Generally, the openly hostile possession must be continuous (although not necessarily constant) without challenge or permission from the lawful owner, for a fixed statutory period in order to acquire title."
The Colorado statutes concerning adverse possession read, in pertinent part: Every person in the actual possession of lands or tenements, under claim and color of title, made in good faith, who for seven successive years continues in such possession and also during said time pays all taxes legally assessed on such lands or tenements shall be held and adjudged to be the legal owner of said lands or tenements to the extent and according to the purport of his paper title.
There was NO evidence whatsoever that McLean and Stevens were using the land in good faith under color of title, and NO evidence whatsoever that they paid the taxes on that property, while the Kirlins did proffer evidence that, in fact, it was they who were paying the taxes on the land to which they held actual title. McLean and Stevens offered NO proof that they had used the land for more than 7 years, merely their own unsupported and self-interested testimony. Moreover, there are photographs which clearly show that McLean and Stevens lied to the court about creating paths years ago.
On appeal, the Kirlins should be granted a trial de novo before a judge who does not have personal and political relationships with McLean and Stevens. It's unfortunate that we do not have a civil rights defense organisation dedicated to defending property rights, much as FIRE defends speech rights. This case gets me mad enough to think about starting one myself.
Your take on this case is the correct one. As soon as they saw a path or landscaping or any evidence of usage, they should have first called the survey crew to put up the little orange flags, and then the fence contractors to surround the place. Period. End of story. Sad but true, but it is their fault for being neighborly.
There is a fairly good chance that with enough press and publicity they can get their land back. Then of course they will need to promptly sell it, because it is unlikely they would want to live next door to these greedy bastards.
About the most common sense post on the whole thread. Thanks.
Foot paths don't often show in those pics, since they're no more than animal paths. I read the court doc, which was taken down from the link in #76. The aerial pics are n/g. The neighbors testified that the judge regularly did landscaping over those years on the property and the court noted, that it was the only access. Surveyors also noted the path.
"Second, the ethical complain should not have been heard by a friend. Rather the friend, the judge, should have recused himself personally. The matter should have been sent to another court where this perp had not worked previously."
I don't see a "perp". The court docs told me, that it was a solid case of adverse possession. You don't get to whine after you've been totally abscent for over 20 years in these cases, and the Kirlins definitely were.
There is always the chance that there are some real ( not faked ) 20 year old aerial pictures that may show a path. Or maybe some other real proof that has not been reveled to date. Then we will be wrong on the first point.
We all will be watching if they try to photo shop something or pull a Dan Rather forgery.
Your land, use it or lose it.
In Texas and apparently in Colorado, you are wrong. Now the idea of making a pig farm on the remaining farm, just to be a spoilsport is entirely appropriate and just. :)
Here in PA, you can invoke adverse possession if you have been paying the taxes on the propety during the time you were "using" it and I'm going to assume it's the same in CO. According to everything I've read, McLean hasn't paid a penny in taxes and the Kirlins have paid 20 years worth.
It's obvious these two with political connections are bending the law and figuring they can get away with stealing. It looks like people are getting wise to their plan and it may not happen. I hope not.
Thanks for the ping and letting people be aware of this. Your land can ‘disappear’ just over such a silly reason. One of these days I’m going to write about how my land was lost. When it happened nearly two decades ago, there really wasn’t any one to tell and no one believed it anyway. Those things don’t just happen, I was told. Well , yes they do. People like these rotten judges have been getting away with this stuff for a long time. But now the victims don’t stand alone. They go after easy targets. I was a single mother and couldn’t afford to fight them. No one should be subjected to this kind of theft.
Sorry for the perp part.
Can a path be enough or must there be a man made structure like a fence or a building ?
Hopefully, one positive result will be that folks now will hire a surveyor, re-check their lot corners, or some such to vertify that someone is not sitting on part of their land.
The attention may even get bigger on ex-judge and former Boulder mayor Richard McLean and his lawyer wife Edith Stevens.
That is a fact. "Adverse possession" does not exist in statute law in any state in the U.S. It exists in case law, through rulings that refer back to English law from centuries ago.
The basis of adverse possession lies in a monarch's power to tax land and it's productive uses. One who used the lands of another, and paid the taxes therefore due, was usually awarded fee title to the land after a reesonable period of time.
In this case, no productive use was established, and no taxes were paid by the plaintiff, thus the ruling is defective on it's face.
My understanding (which was rekindled by R#84) of adverse possession is that it generally refers to a piece of land that has been essentially abandoned (or mistakenly assumed to belong to an adjoining landowner). The person who desires to claim it must maintain it and pay taxes on it for a prescribed period of time (which may be twenty years in Colorado?).
I don't believe that McLean or Stevens have 'maintained' the land, nor have they paid a cent in taxes, while the Kirlins, although not maintaining it (And why would they, other than perhaps mowing it, which, from the photos I've seen, it appears that they did? It's a vacant lot.), they faithfully paid the taxes on it for the twenty years that McLean and Stevens claim they were 'using' it.
The motives in this case are obvious, and the McLean/Stevens claim doesn't fall under the adverse possession umbrella for several reasons.
This appears to be a case of two arrogant, politically-connected big-wigs who think they can throw their weight around under the radar, and steal from a neighbor in the process. IMO, the fact that they may lose the natural view from the side window of their home does not take precedence over their neighbors' property rights. And, if all is as it appears, they are without integrity ... or conscience.
~ joanie
Yeah, well let's see...
You cited what is presumably CO law which covers the case where the party attempting adverse possession files a deed at the Co recorder of deeds. Note, it's says under a claim and color of title, made in good faith. THe clause you quoted covers the case where neither owner has clear title. The first owner was apparently neglegent in checking for clear title to begin with, and evidently failed to get title insurance, which would have caught the problem.
The appropriate Co law covering this is: CO:38-41-101. Evidence of adverse possession.
Where the extent of the adverse possession is not defined by deed or by physical barriers, the claim is limited to the property actually occupied by the claimant and such occupancy is a question of fact for the trial court to determine. Such occupancy does not require constant, visible occupancy or physical improvement on all parts of the parcel, but rather the ordinary use for which the land is suitable and which an owner of the land would make of it. Similarly, possession need not be absolutely exclusive in order to attain the degree of exclusivity required for adverse possession. Smith v. Hayden, 772 P.2d 47 (Colo. 1989).
38-41-101. Limitation of eighteen years. Statute text (1) No person shall commence or maintain an action for the recovery of the title or possession or to enforce or establish any right or interest of or to real property or make an entry thereon unless commenced within eighteen years after the right to bring such action or make such entry has first accrued or within eighteen years after he or those from, by, or under whom he claims have been seized or possessed of the premises. Eighteen years' adverse possession of any land shall be conclusive evidence of absolute ownership.
Make sure to note the annotations of court rulings that follow in the link.
I find it amazing that the judge who ruled in this case, and McLean and Stevens, both legal experts themselves, are all 'unaware' of this discrepancy.
~ joanie
No, it's a case of perjury, and a dishonest jurist, pure and simple.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.