Land Lost After Boulder Couple Failed To Use It

(CBS4) BOULDER, Colo. A couple that owned an undeveloped piece of land in Boulder for 23 years lost part of that plot to neighbors because of a little-known state law.

"We always thought someday, somehow, we were going to build our dream home on this lot," said Don Kirlin.

A third of the land belongs to the couple's neighbors after they acquired it for free under a law called adverse possession.

"They could have come over and said 'get off my property,' they could have built a fence, but if they didn't do that for 18 years, the law is going to transfer title to the new user," said Patrick Wilson, a lawyer who specializes in land disputes.

The legal dispute was based on a path. The neighbors said they used the path to get access to their backyard.

Court documents show the neighbors, Richard McLean and Edith Stevens, said they used the path continuously for 25 years without permission. The court filing also claimed they used the land virtually every day for gardening, a wood pile and even entertained on the land.

The Kirlins used photos of the land taken in 2003 that don't appear to show a path.

The court concluded the neighbors' attachment to the land is stronger than the true owners. That means the neighbors can get a chunk of the land for free.

"How these people can do this and feel it's okay is beyond me," Don Kirlin said.

Richard McLean and Edith Stevens said through their lawyer that they did not want to comment because of pending litigation. The case is being appealed.

The Kirlins have spent $120,000 in legal fees and plan to spend another $60,000 on the appeal.

Best way to avoid this sort of problem is to make sure upon acquiring a piece of land that you go to each and every neighbor (of adjoining or nearby properties) and tell them they have your permission to cross your land without hindrance "until you rescind that permission".

That way any "possession" or "use" of your property by those folks never becomes an "adverse possession".

Get it in writing too ~ file it with your deed down at the courthouse.

Alternatively you can put in a barrier, but folks have done so and lost in court. Giving permission and proving it has never lost ~

A variation is to get them agree to pay rent for crossing your land.

It sounds as if this particular claim was bogus, but the principle behind it is, unfortunately, law.

You can establish a right of way by using a path for a certain number of years. Our children used a path across several neighboring properties, down to a dock on the water from our summer house, and the previous owners also had used it. It didn’t give us any rights to their property, but it did prevent them from fencing us off the path. All but one neighbor were agreeable to letting our kids use it anyway, the one problem being someone who bought a house long after we’d been crossing her property, maybe for thirty years. But she backed off without our having to take it to court.

Another neighbor built a septic field for a converted boat house, that extended into the woods at the bottom of our property. We never noticed it until we came to sell the house, when it suddenly became a problem, because the Title Company wouldn’t issue a guarantee until the matter was settled. The buyer and our neighbor worked out a settlement. But the basic law suggested that he “owned” the property he had mistakenly used, because we hadn’t objected to it. Or, since we hadn’t known about it, at least we would have had to take it to court if they hadn’t agreed to settle the matter to the Title Company’s satisfaction, which would have killed the sale.

This goes against every instinct of fairness, but it’s the law in Maine, where this took place, and probably in other states. I would guess it derives from English common law. I know that in England property owners cannot block public footpaths across their property.

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