Many types of disputes can arise between Colorado neighbors. But perhaps no dispute is as concerning as one that could strip you of your ownership of a portion of your property. As a homeowner in the Centennial State, your house is likely your single most valuable asset. You should, therefore, do everything in your power to protect it.
As a property owner in Colorado, you likely have two or three neighbors whose land borders yours. While it may seem surprising, those neighbors might be able to gain legal title to pieces of your property under a legal concept called adverse possession. And while less likely, the law also allows an unknown trespasser to squat on your land and develop the same type of claim to ownership.
To make sure that your land remains yours and that a neighbor can’t claim a portion of it, you should familiarize yourself with Colorado’s rules on adverse possession. There may also be times when you yourself need to assert an adverse possession claim, over land that you feel you’ve developed a right to use and want to continue using.
Adverse possession is a legal concept that allows a trespasser—sometimes a stranger, but more often a neighbor—to gain legal title over the land of the property owner.
The concept developed in early Britain. Archaic though its roots might be, the law’s continued utility is to achieve a fair result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for so long that to make the trespasser leave would actually create hardship.
Adverse possession in Colorado is controlled by statute (laws passed by the state legislature), but also by the state courts.
Importantly, the burden of proof to establish a claim of adverse possession is on the trespasser. The legal holder of title has the presumption of ownership until the adverse possessor can meet that burden. In other words, it is entirely the trespasser’s job to prove that the judge should give him or her ownership over the land. Just making the claim and hoping the other side won't do a good enough job defending against it is not likely to win the day.
There is no single statute in Colorado that articulates the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors, over many decades.
As in most states, adverse possession in Colorado is established from the nature of a trespasser’s possession and the length of time the person possesses the land. A trespasser’s possession must be:
A hypothetical is useful here. Pretend that Fred and Jill live next to one another in Denver. There is no dividing fence or boundary between their yards. Fred builds a shed that is actually on Jill’s side of the property, covering about ten square feet of earth. Jill doesn’t say anything. Fred uses the shed as if it were on his own land. He does this for 18 years. Under the rubric described above, Fred can probably establish that he “owns” the land on which he was encroaching. Jill could have stopped Fred by asking, over those 18 years, that he remove his shed, or insisting that he sign a rental agreement. But Colorado courts won’t necessarily let Jill suddenly eject Fred after she sat on her rights for nearly two decades.
Normally, an adverse possessor must occupy the subject land for at least 18 years. However, there is an exception to that under Colorado Rev. Stat. § 38-41-106. If the possessor has “color of title”—which essentially means some sort of official government document that states that he or she is the owner—then the person needs to have only seven years of occupation. For example, if the trespasser actually paid property taxes on the land, this would qualify.
In some states, a crucial legal determination is whether the trespasser knew that he or she was trespassing. In Colorado, this does not matter. The doctrine of adverse possession protects someone who has honestly entered and held possession in the belief that the land is his or her own, as well as one who knowingly appropriates the land of others for the specific purpose of acquiring title.
In other words, in Colorado, there is no requirement that the entry and continued possession of the property be done with knowing or intentional hostility.
Rather, any entry and possession for the required 18 years that is exclusive, continuous, hostile, actual, and open—even if under a mistaken claim of title—is sufficient to support a claim of title by adverse possession. In our example above, it doesn’t matter whether Fred built the shed knowing that he was on Jill’s land, or whether he built it mistakenly thinking it was on his own land. His intent has no bearing on his eventual claim for title under adverse possession.
What should you do if you spot a trespasser or a neighbor encroaching on your land? Chances are, it’s an innocent mistake on the person's part. Given that, your first step should be to nicely ask the trespasser to move and to remove any structures or property that he or she placed on your land. More often than not, the person will comply.
If the trespasser does not comply, you may be forced to consult a lawyer and bring an action to quiet title—a legal method for determining who holds title to land. In an action to quiet title, you’re asking a Colorado state court judge to issue an order declaring that you, and not the trespasser, are the true owner of the land.
A quiet title order is particularly helpful if you are intending to sell your property, and will need to reassure potential buyers about its boundaries and rightful ownership.
Land held by Colorado state and municipal government entities are generally immune from adverse possession actions. In other words, title to public lands generally can’t be acquired by adverse possession as against the state of Colorado. So, if you live next to an unused stretch of Castlewood Canyon park, you won’t be able to expand your backyard merely by mowing the lawn and waiting 18 years. The state of Colorado will still “own” that land.