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Monday, November 26, 2007

More Adverse Possession in the News

Adverse possession stories are  suddenly springing up around the country.  A few days ago, I blogged about Governor Spitzer's veto of a law that would require good faith in order to adversely possess in New York.    And then, just before Thanksgiving, I was directed towards this article (free registration required) of an adverse possession case that is stirring up some dust out in Boulder.  (HT PropertyProf and BoingBoing)    The case is a fairly straightforward one.  Although the facts are contested, the trial court seems to have credited  evidence indicating that the plaintiffs used the defendants' land openly and notoriously for over two decades, primarily as a path from the front  of their house to the back, but for other purposes as well (including, among other things, stacking wood, entertaining, and gardening).  For some reason, however, the case has generated a great deal of local commentary, such as this breathless report by the local Fox News affiliate about the "little known law" of adverse possession that it predicted would leave property owners "shaking their heads in disbelief." 

Opponents of the trial court's decision recently held a rally on the adversely possessed parcel in support of the original owners.  Here's a description:

More than 200 people holding signs that read, "Thou shall not covet, thou shall not steal" and, "You'll never enjoy a stolen view" gathered Sunday on Hardscrabble Drive in south Boulder to condemn Richard McLean, a former district court judge and former Boulder mayor, and his wife, Edith Stevens, for taking possession of a portion of two vacant lots that have belonged to Don and Susie Kirlin for nearly a quarter of a century.

Several protesters yelled "shame"and "thief" at McLean and Stevens as they drove away from their home shortly before the rally began at noon.

One woman stepped up to the car's passenger side window and yelled, "How can you live with yourself?"

The case looks like a fantastic tool for teaching first-year law students.  The site to which I linked above has nice video clips and copies of court documents, as well as a link to a Google Earth image of the property in question. 

This seems to be a clear situation of so-called "bad faith" adverse possession, which makes it somewhat unusual and especially likely to raise student hackles.  The intuition expressed by people at the rally, that that adverse possessors were little better than common thieves, is likely to be widely shared by incoming law students, if my own past experience is any guide.  And you couldn't ask for a more unsympathetic couple of bad-faith adverse possessors.  They are not needy squatters, as this fellow in London was, but affluent lawyers.  Indeed, the original owner of the parcel filed a complaint with the Colorado bar authorities, arguing that adversely possessing someone else's land was grounds for disciplinary action.   

Although the Attorney Regulation Counsel rejected the complaint, its response provides another interesting angle for class discussion.  The Counsel's letter in response to the complaint explained that "Colorado law specifically allows adverse possession.  A court of competent jurisdiction examined Ms. Stevens' claim and ruled in her favor. Pursuing a civil action that is permitted by state statute and upheld by a court of law is not misconduct."  While I agree with the Counsel's bottom-line decision, I think its reasoning moves a little too quickly.  A knowing adverse possessor, prior to the running of the statute of limitations, is not a run-of-the-mill civil plaintiff, but rather a serial trespasser.   What better way to bring out the inherent ambiguity and moral complexity of the doctrine than to discuss this very question -- whether it is ethical for a lawyer to knowingly adversely possess her neighbor's land?   

Finally, the case provides a great opportunity to talk about social norms and their relationship to the law.  Although these claimants were well within their rights to seek title to their neighbor's land by adverse possession, the people at the rally were having none of it.  In part, their reaction to the case shows the cultural power of a kind of naive property-rights absolutism that pervades much of our popular property discourse, however uninformed it is by the actual law of property.  We saw this a few years ago with the outcry in response to Kelo, with its incorrect insistence that the case broke new ground in the arena of constitutional property rights.  Here, we are witnessing a lesser version of the same phenomenon.   There are few property doctrines with a longer pedigree than adverse possession.  If anything counts as a "background principle" that qualifies the rights of private ownership, adverse possession surely does.  And so, from one point of view, the court's award of the land to the adversely possessing plaintiffs is  properly understood as an affirmation of property rights, at least as those rights are (and for centuries have been) embodied in the law.  The protesters are simply mistaken to suggest otherwise.  Obviously, adversely possessing a significant chunk of land in a suburban subdivision requires a fairly negligent property-0wner (it takes two to tango), but the critical commentary has not really focused on that dimension of the case.

On the other hand, I understand the moral indignation expressed by the people at the rally. Notwithstanding the parties' seemingly clear legal rights, I can imagine few things that are less neighborly than knowingly adversely possessing your neighbors' land.  Two owners a few doors down from my own house are going through this right now, and I can say with certainty that asserting a claim of adverse possession is guaranteed to destroy even decades-old friendships.   The angry response to the Colorado case, however divorced from legal doctrine, can create  its own "legal" reality.  It might, for example, make life for the adverse possessors sufficiently unpleasant in the short or medium term that the next person in analogous circumstances thinks a little longer and harder about trying to reach an accommodation with the neighbors by some other means before filing the lawsuit for adverse possession.

Posted by Eduardo Penalver on November 26, 2007 at 03:00 PM | Permalink

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Eduardo, this case is fascinating I agree, but perhaps you can help a non-property-prof out on a couple of things:

1) Is the holding that a footpath is both "actual possession" and "hostile" in line with other decisions? Just on its face, it seems weak on both grounds, but particularly the "hostility" prong. A footpath does not strike me as a terribly exclusive use of the land. For example, I often walk across my neighbors' driveway during the summer to get from the front yard to the back while watering my lawn -- some plants planted by a previous owner of my property block the shortest route. Not that I would ever think of making an adverse possession claim on that basis, but it seems odd to think that my neighbors have something to worry about. Indeed, the whole reason I walk across the driveway is because it *doesn't* interfere with any current use or potential future use by the owners of the driveway, and I presume that they know that that is my intention. The legal rule here seems perverse: if you see evidence that someone is cutting across your property, and it doesn't interfere with your use in any way, you are still required to (within 20 years or so) fence off the path in order to prevent a transfer of title.

2) Speaking of which, why is the remedy here transfer of title to a portion of the property, rather than an easement? Is that also common?

Posted by: Bruce Boyden | Nov 26, 2007 5:48:48 PM

I second an interest in the second point by Bruce, as out here in California this would seem to be a question of easement in the first instance.

Posted by: Patrick S. O'Donnell | Nov 26, 2007 6:17:50 PM

Bruce -- I agree that the footpath use would seem more appropriate as a basis for a prescriptive easement than full-blown adverse possession of the parcel, if that were the only use. I have not yet read the trial court's order, just news accounts, but my understanding is that there were other uses as well, including stacking firewood and holding parties on the portion of the land being claimed, and perhaps others. These are just the ones that the news stories have mentioned. Stacking the firewood would seem to me to be closer to the sort of use that would give rise to adverse possession, though I've read cases that go the other way on that one. New York requires even more intensive uses, such as enclosure or cultivation. In any event, my reading of the stories is that the protests/controversy have not focused so much on the sorts of uses as on the concept of adverse possession, but the two might be related. That is, perhaps people are more offended at the notion that a use as innocuous as walking over your neighbors' land can give rise to a change of title but would be less upset if the plaintiffs in this case had extended their house out over the property line.

Posted by: Eduardo Penalver | Nov 26, 2007 6:21:00 PM

I updated the language in the post after a quick read of the trial court's findings of facts. But I think the path use would be a pedagogically useful one to play around with to help bring out the difference between adverse possession and prescription. And, in this case, it might have provided a nice way to split the difference between the two parties. Part of the defendant's objection to adverse possession was that it left them with an unbuildable rump lot. Prescription would seem to avoid that problem.

Posted by: Eduardo Penalver | Nov 26, 2007 7:47:31 PM

Colorado native here(and a computer programmer, so I have no legal info to add) with a quick note...

Not to point out the obvious, but the thing that has the locals up in arms is mainly the fact that this happened in the suburbs and the owners paid thousands of dollars in taxes and HOA fees over the last 23 years. They paid (I believe) $120/month for HOA dues and paid $16,000 last year alone on taxes. Also, the owners live about 200 feet away from their land and NEVER once say these people on their land. Now that the judge and his wife were awarded 34% of the property, it's now unbuildable. The "thieves" wanted the property soley to maintain their million dollar(literally) view of the beloved Flatirons.
Just a layman's view I wanted to throw on here.
Thanks.
Mark

Posted by: MarkH | Nov 27, 2007 8:33:07 PM

Thanks, Mark -- It's interesting that the objections to the case are focused both on the trial court's factual findings AND the concept of adverse possession as such. Your comment shows the same ambiguity, although, as I note in my post, the view of adverse possessors as "thieves" is one that is widely shared, and perhaps accurate when deployed against affluent homeowners trying to preserve their view. The latter objections, however, distracted me at first from the former. But, after reading the trial court's opinion more carefully, my sense is that the case for adverse possession here was actually weaker than I first thought. It will be interesting to see what happens to the trial court's decision on appeal.

Posted by: Eduardo Penalver | Nov 27, 2007 8:53:03 PM

Final Order is located at http://boulderdude.wordpress.com for details.

Posted by: GiGi | Nov 28, 2007 10:24:59 PM

Hey well... we have a case going on in Denver County where my grandparents passed away, the neighbors to our property (of just over an acre) filed a hostile landmarking application for the WHOLE parcel (split into three parcels in city records). When they didn't get it all then, they encouraged the lady next door, who is a naturalized citizen (we assume) from Spain (whose second ex-husband bought my great grandparent's house in the 70s-she won the house in the divorce in 1998 and was only first placed on the title in the early 90s) to file an adverse possession case against us to cloud the title of our land so we can't sell. This claim makes the property far less attractive.

They've so far managed to repeatedly harass us while we're on this narrow strip they claim we don't own, steal 'no trespassing' signs and assault my mother. There are TWO permanent restraining orders against the husband/wife lawyer team who assaulted and harassed my mother.

The neighborhood supports their behavior. They have had meetings discussing how damaging landmarking would be financially. One neighbor was quoted as saying we deserved it. Why? We never did anything to these people. Also, they've attempted to get us blacklisted from any buyer of higher dollar properties, perhaps interested in developing it. They admitted to having a phone list of people to call and have drive by the property if they saw us out there working. Just to make sure we weren't "doing anything wrong."

We've been on this property for going on 90 years and this is how they treat us? It's so bizarro as compared to the outrage in Boulder. These neighbors to our property simply don't want anything built. Yet they've overbuilt on their property. Also, the lady (who plays as if she is a weak immigrant just trying to make it in her new land- yeah right) has changed her story NUMEROUS times on what she "believes" she has always owned. We've had many surveys and this last year, they actually pulled out the survey pins as well! They've harassed our surveyor... you name it. Stepped in front of a running chain saw, yelled, screamed, filmed... Anyway, she has not used the property and we have proof. She fears things will change, just like they other neighbors fear. So they apparently feel it's OK to financially destruct my family just so they won't have another house next door. Did I mention that they happen to have 75 acres of park land across the street, collectively? Why us? Why our land? Why do this kind of thing? I just don't see how people can live with themselves, knowing they're destroying lives. Land/house ownership is generally the largest asset in a person's life. At what point is someone going to realize that if they do something like this, eventually they're going to run into someone who doesn't necessarily have the restraint we have had? People are really playing with fire.

If you're interested in reading the articles done in the Denver Post and Rocky Mountain News, do a search in Google for 'S.R. DeBoer'. We have the #1 spot in the rankings, the neighbors have #2. Feel free to peruse their site'O'lies. You'll be able to see some of the articles written on our situation in regard to the landmarking. Did I mention the total corruption in the City? It seems that Colorado has some work to do in finding ethical people to run our cities.

Posted by: Catherine Potts | Dec 16, 2007 1:44:59 AM

Eduardo,

I've visited the Boulder property in dispute. The lot is only 4000 sq feet (50'x80'). The plaintiffs are asking for 34% of the defendants' land. This would render the remaining portion (33'x80') of the lot unbuildable.

The ground itself is composed of very sandy soil and loose rocks, highly susceptible to erosion. The lot is on a significant grade, perhaps a 6% slope from the street up toward the back of the property. The "path" runs directly up the slope. If in fact, "the plaintiffs used the defendants' land openly and notoriously for over two decades, primarily as a path from the front of their house to the back", the path would have become an eroded trough in very short order. In fact, the lot is adjacent to an extensive open space system where trail erosion is a persistent problem. The plaintiff's path, on the other hand, appeared to have been recently scratched out with a hoe. There was no trough and no evidence of use let alone 1 years of notorious use which would have resulted in serious erosion. In fact, there were plants still growing in the path, a virtual impossibility in this part of Colorado if the path had been used at all. So, one level of outrage is over the fact that the plaintiff's are most likely lying about their "notorious" use.

A second point of outrage is over the fact that the trial judge allowed and believed all testimony of notorious use by the plaintiff's witnesses, and disallowed or disbelieved all testimony by the defendant's witnesses. The plaintiff is not only retired judge (who formerly occupied the very courtroom where the trial was held) but also a former mayor. When he entered the courtroom for the trial, the sitting judge greeted the retired judge by saying, "It's an honor to have you in my courtroom, sir." As a result, many in the town believe the plaintiffs received extraordinary deference from the court.

Third, the plaintiffs claim they require the "path" in order to access their back yard, which is really just a patio with a gorgeous view of the mountains that any home on the lot next door would obstruct. (Of course, they also have a back door directly on to their patio, and can easily walk around the other side of their house if necessary.) The defendants offered to give the plaintiffs 5' of land along the property boundary and offered to build a walkway with stairs from front yard to back. The plaintiffs refused the offer. The Community (but not the Court) interprets the refusal as indication that the plaintiff's motives are not to preserve access to their back yard, but rather to block the defendants ability to build on the property.

Fourth, the plaintiffs went to court asking for an additional 9" of land because the original ruling didn't fully include the "path". Using exactly the same evidence as in the prior trial, the judge ruled against the plaintiffs. Why? If they'd been using the land notoriously for 18 years (as claimed), then legally they're entitled to all the land they were using. Perhaps the first ruling was made before this case had any measure of public scrutiny, and only after community outrage did the trial judge decide to play it straight.

Finally, the plaintiffs have asked the court to force the defendants to pay all the plaintiff's legal costs. So the defendants purchase the land, pay taxes on the land, pay HOA dues on the land, and maintain the land in order to have it blend in with the open space its adjacent to until they're ready to build. The plaintiffs, politically connected lawyers in a small town sue for adverse possession in order to protect their view of the mountains, and ask that the defendants pay for their legal costs.

So many of you lawyers only view the world through the lens of "legal vs illegal", not "right vs wrong". That's why so many non-lawyers view lawyers in such a negative light. Our laws should be a reflection of our morality, not independent of it.

"The law … is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the due process clause, the courts will be very busy indeed." -- Byron R White

Posted by: Foreign Correspondent | Dec 24, 2007 12:36:26 PM

The prior poster may very well be an employee of the Defendants' corporations RedAir or AirUSAand has been spreading lies about this case all over the internet. He posts under many different names, encourages people to harrass, threaten, shun, and defame through his anonymous blogging.

The judge in this case believed all witnesses in the case except for one, the surveyor whose testimony was inconsistent - even with his own crew. You can read the order at https:\\boulderdude.wordpress.com that is listed in a previous posts on this site. The order shows that Foreign Correspondent's posts are false on their face. The Order clearly states:

"With the exception of Lee Stadelle, the land surveyor hired by Defendants whose testimony was inconsitent with every other witness in this case inclding his own survey crew, this Court found that all of the witnesses presented by both sides at trial were credible."

Footnote three details the problems with the Kirlins own testimony, while believable, did not help their case. They didn't have a clue where their property line was, they never maintained the property musch less sprayed for weeds on this property that they could remember. According to Wired Magazine, the Kirlins lived in Kagykistan, in the eastern block since the 1990's where Don Kirlin operated as an arms dealer acquiring the world's largest private airforce by purchasing MIGs from the former Soviet Union.

In Colorado, the payment of taxes and HOA dues is not a defense pursuant to appellate law; and that was the only point that the Defendants made. They offered no photographic images to show that the paths did not exist; if anyone takes the time to review the Court record, they will find that the Defendant actually listed an Exhibit Z. This satellite image that shows the paths and helped the Plaintiff's case. According the the transcript Exhibit Z was not offered into evidence.

During trial, Suzie Kirlin got impeached with prior inconsistent sworn testimony through the trial about fundamental issues.

The Kirlins refused to permit this case to be amended and tried as an easement case. They objected to the Amendedment of the Complaint in this regard. They voluntarily dismissed any claim of trespass.

The judge who made the decision in this case never knew either McLean or Stevens. He never served on the bench or met these Parties. Nonetheless, bloggers like FC have made up endless statements about what happened in Court and have created a cyberlynch mob which will now be visting your site.

Posted by: 4TheTruth | Dec 26, 2007 4:56:14 PM

the Kirlins lived in Kagykistan, in the eastern block since the 1990's where Don Kirlin operated as an arms dealer acquiring the world's largest private airforce by purchasing MIGs from the former Soviet Union.

1. The country of Kagykistan does not exist and never existed.
2. "the former Soviet Union" is not a country and does not sell anything to anyone.
3. Russia, the successor to most of the Soviet arms, does not sell MIGs to private individuals residing in Central Asia.
4. Former Soviet republics of Central Asia (Tajikistan, Kazakhstan, Uzbekistan, etc.) do not permit the operation of private arms dealers, much less run by Americans.

I don't care about the takings case, but the last comment is idiotic beyond belief.

To Eduardo: the real worry in this case (and many other such cases) is judicial corruption and the way local power elites transfer other people's property to themselves without compensation.

Posted by: anon lawprof | Dec 26, 2007 11:23:18 PM

To correct 4TheTruth's misstatements about me...

I've never met the Kirlins. I do not work for the Kirlins or any company they own. I post consistently under one name, Foreign Correspondent, and use no other name.

The purpose of my post was to offer insights into why the community is so outraged at this particular case of adverse possession. Part of the outrage is the fact that the two sides are arguing their points on different planes: the supporters of the plaintiffs say the taking was "legal", the community believes the taking is "wrong". This outrage is exacerbated by the fact that the plaintiffs are both lawyers who are also politically elite insiders (former mayor and retired judge) who appear to have benefited from their knowledge of law and possibly their connections to take their neighbor's land without compensation - to preserve their view.

Posted by: Foreign Correspondent | Dec 27, 2007 11:50:34 AM

http://www.wired.com/wired/archive/13.10/kirlin.html tells all about Don Kirlin's arms deals from his own mouth.

Posted by: Better | Dec 30, 2007 9:07:52 PM

I have to laugh at this whole thing as Kirlin has been screwing people for years to get where he's at. It finally came back around. That Karma thing really bites when you abuse it for so long.

Posted by: Skydiver | Jan 3, 2008 11:35:19 AM

It looks like this case is making a difference. Two bils have been introduced in the state.
1. a bill that would bar Colorado judges from presiding over cases involving other current or former judges within the same jurisdiction.

http://www.dailycamera.com/news/2008/jan/24/levy-bill-curbs-judges/

2.The bill would add a "good faith" provision to the law that would require an adverse possessor to have made an innocent mistake in using another person's land. The proposed legislation also is being co-sponsored by Sen. Ron Tupa, D-Boulder, and Rep. Rob Witwer, R-Evergreen.

McLean and Stevens testified, according to court records, that they knew the land next door on Hardscrabble Drive belonged to the Kirlins, but they used it anyway.The bill also would allow judges who award land to adverse possessors to force them to pay the original owner fair-market value, taxes and other assessments for the transfer.

Another provision -- one suggested by a Kirlin family attorney -- seeks to raise the standard of evidence to prove an adverse-possession claim from the lower standard of a "preponderance of evidence" to the higher standard of "clear and convincing evidence."
http://dailycamera.com/news/2008/jan/12/land-grab-law-overhaul/

Boy there is enough karma to go around.

Posted by: skydiver | Jan 30, 2008 11:29:47 AM

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