Adverse Possession Travesty in Colorado

There has been a case that smacks of corruption in Denver. I work in commercial litigation. I am not a lawyer, but I work on the trial team, and I have done a couple of adverse possession claims, one where we were asserting it (we settled) and one where we were fighting it (we won.) As a layperson, I see lots of problems with this case. (I’m looking at this from a Texas perspective, but if there is something in Colorado law that allows these to be gotten around, then there is a major problem with Colorado law.)

First, Adverse Possession requires adverse possession. You can’t hide it. The owner has to know or should have known that you were using the land. It looks like that question came down to a he-said she-said in court. I would assume that the person claiming adverse possession has the burden of proof, and he-said she-said doesn’t carry that burden. I don’t see how they can reasonably say that they were using the land for 18 years and the owner next door who was actually maintaining the land didn’t know.

Second, it requires possession. It doesn’t mean that you can take a yearly jaunt onto the land 18 times and then its yours. It doesn’t mean that you can hold a couple of fundraisers on it and its yours. Your use has to be continuous, uninterrupted, and without permission. This had to be a question of fact for a jury, since there are photographs that the respondants provided that the petitioners don’t seem to have contradicting evidence for.

In reality, there are generally two ways that adverse possession happens in America. You either have a surveying or construction error, or you have a necessary easement. Most of the time what happens is that either because the surveyor or the fencemaker screwed up, and fence ends up in the wrong place. Someone else buys the land 30 years later, has it surveyed, and then wants to move the fence where it originally was supposed to be. He gets stopped, because the land now belongs to the adverse possessor.

Judging from the video, they are trying the other general method. They are claiming that they need an easement. The problems I see with that is that they are claiming a lot of land for a simple easement, and it appears from the video that they never actually used the easement until they thought it was going to be developed. I think that this was, given the scintilla of evidence that the aerial photographs show, a fact issue for a jury, and I’m not sure how the judge was able to decide that himself. That leads me to believe that there was some hometeaming going on, and I am dismayed that the state ethics board refused to examine the issue (at least until the appeal goes through.) If it turns out that the attorney and retired judge abused their position to try to steal this land unlawfully, then they should both be disbarred, along with the judge who complied.

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