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Property right wrongly taken
Nanny State.com ^ | November 19, 2007 | David Harsanyi

Posted on 11/19/2007 8:35:32 AM PST by nannystate

The story is so absurd, so unfair, so ludicrous, I had a difficult time believing that it could actually happen - even in Boulder.

It’s about a couple named Don and Susie Kirlin. They moved to the city in 1980. A few years later, the Kirlins purchased a plot of land near their residence, hoping to someday build a “dream home.”

“We took advantage of the market in the early ’80s,” says Susie Kirlin, almost apologetic for making a smart investment.

Children interfered slightly with the master plan - three of them in the next few years - postponing any development of the property.

As the children began to make their own way in life, the couple decided it was time to finally develop the property in late 2006.

By then, it was too late.

Despite owning the land, despite living only 200 yards from the property, despite hiking past it every week with their three dogs, despite spraying for weeds and fixing fences, despite paying homeowner association dues and property taxes each year, someone else had taken a shine to it. Someone powerful.

Former Boulder District Judge, Boulder Mayor, RTD board member - among other elected positions - Richard McLean and his wife, attorney Edith Stevens, used an arcane common law called “adverse possession” to claim the land for their own.

(Excerpt) Read more at davidharsanyi.com ...


TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: nannystate; propertyrights
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1 posted on 11/19/2007 8:35:32 AM PST by nannystate
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To: nannystate

Unfreakinbelievable. I hope this judge(s) get locked up in stocks in town commons.


2 posted on 11/19/2007 8:44:40 AM PST by thegreatbeast (The evil which you fear becomes a certainty by what you do.)
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To: nannystate

You have got to be kidding me. This really makes my blood boil.


3 posted on 11/19/2007 8:47:54 AM PST by dr.zaeus
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To: nannystate
Democrats In Action !!!!

They care ; Not !!!


4 posted on 11/19/2007 8:49:34 AM PST by Uri’el-2012 (you shall know that I, YHvH, your Savior, and your Redeemer, am the Elohim of Ya'aqob. Isaiah 60:16)
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To: nannystate

Adverse possession is legal. If someone has encroached on your property for 10 or more years and you have not taken steps to stop it, then that person has a claim to the land.

There is more to this story than meets the eye.

http://www.expertlaw.com/library/real_estate/adverse_possession.html

Adverse possession is a principle of real estate law whereby somebody who possesses the land of another for an extended period of time may be able to claim legal title to that land. A typical definition requires that the person claiming ownership through adverse possession must show that its possession is actual, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period. These terms have special legal meanings as legal “terms of art”, meaning that their definition for purposes of adverse possession law may be different from a definition you would find in a standard dictionary.

Please note that real estate laws can vary significantly between jurisdictions. Adverse possession is now usually governed by statute, and the law, definitions of terms, and the applicable statute of limitations can vary significantly between jurisdictions.


5 posted on 11/19/2007 8:52:58 AM PST by Islander7 ("Show me an honest politician and I will show you a case of mistaken identity.")
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To: nannystate

There was quite the protest there yesterday (see the daily camera http://dailycamera.com/ )

The land stealing pieces of, er a lawyers are having a real tough time around here right now.

Though there was going to be a lynching.


6 posted on 11/19/2007 8:53:16 AM PST by JMJJR (Just doing my part to slow the coming of the next impending ice-age)
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To: nannystate
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

I am fearful that this Republic for which so many have died, is being transformed into the tyranny of a democracy run by those of little education and great greed for benefits, by those of high education and greater greed for power and an indifferent or enabling press and academia. The future is not bright you see - que sera, sera.

7 posted on 11/19/2007 8:53:47 AM PST by MarkT
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To: nannystate

I’m not surprised. There’s no property ownership in America.


8 posted on 11/19/2007 8:57:44 AM PST by mysterio
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To: dr.zaeus

Adverse possession occurs when you allow a neighbor to use your property. The most common occurrence is when a neighbor encroaches on your property (for example builds a fence). If you don’t sue for trespass the neighbor can take title of the property through “adverse possession”.

Word to the wise, don’t let any neighbor encroach on your property.


9 posted on 11/19/2007 8:58:42 AM PST by baltoga
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To: nannystate

The doctrine of “adverse possession” is one of the most interesting in the field of real property law. The character of the law reflects the pioneer spirit of a growing world in both North America and Europe over the last few centuries.
If a person moves into possession of property, improves it and possesses it in a public manner, then after a certain amount of time he will acquire title to the property even though it is actually owned by someone else. The idea for adverse possession has at its root that land should not lie idle. If it does, it is wasted to the community. Therefore, if someone moves onto the land and makes it productive, that person may earn the right to claim it as his or her own. It is also reflective of the imprecise nature of ancient land sales: a person who believes he owns land, establishes himself on it in public, and is not hindered after a period of time, should be entitled to own the land.

The basic requirement for adverse possession is that the claiming party must take exclusive possession of the property. This type of possession is called “open and notorious” or proactive and absolutely not secretive possession. Some states require that the possession be “under color of title,” or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer’s title. Essentially, the owner’s only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to “tack” various periods of possession together in order to satisfy the time of possession requirement; see your state codes or the code of the state in which you are interested for more detailed information.
Table 41: Adverse Possession


10 posted on 11/19/2007 9:00:10 AM PST by Dr. Bogus Pachysandra ("Don't touch that thing")
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To: dr.zaeus

As posted last week, without have all the details, it may be possible the “owners” failed to ever register the purchase with the County, which makes it official and give all other parties notice “they own it”. Appraisal District changing taxes to new owner is not same as recording with County. Often such land transactions are between original seller and buyer by Quit Claim or similar, no survey, no recording.
Without recording, if this is the case, it makes Adverse Possession much easier. Word to the wise, RECORD no matter how you buy!

Second, this is BOULDER, who is surprised that a lib dim takes advantage of the little guy?


11 posted on 11/19/2007 9:00:16 AM PST by dusttoyou (FredHead from the git go)
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To: dr.zaeus

State Code Section Prescriptive Period Occupation Time to Challenge Improvements Payment of Taxes Title from Tax Assessor
:
COLORADO 38-41-101, et seq. 18 yrs. and Color of Title/Payment of Taxes: 7 yrs. After disability lifted: 2 yrs. 7 years

Has the judge been payin’ taxes on the property for 7 years? Paths are improvements? I sue the cr@p outa anyone involved!


12 posted on 11/19/2007 9:03:04 AM PST by Dr. Bogus Pachysandra ("Don't touch that thing")
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Comment #13 Removed by Moderator

To: Islander7

Yes, surprising at it is to some, adverse possession is legal (and in fact quite Lockean in charactre). Still, I thought that the fact they kept the property up (fences, spraying, etc.) would be indicative of an intent to retain possession. Wouldn’t these normally negate a hostile claim on real property?


14 posted on 11/19/2007 9:03:09 AM PST by Titus Quinctius Cincinnatus (Conservatives - Freedom WITH responsibility; Libertarians - Freedom FROM responsibility)
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To: nannystate
Reading the comments at the original site for this article (The Denver Post), this is not over.

http://www.denverpost.com/harsanyi/ci_7501264

If you read through the comments at the bottom of the story, two things jump out:

There may have been a relationship between the people trying to take the property and the judge who issued the order.

There may be aeriel photos that contradict the statements of the judge and his wife to justify taking the property.

If those are the case then the Kirlin’s may yet win this.

15 posted on 11/19/2007 9:03:39 AM PST by GreenLanternCorps (Thompson for President: 2008, 2012: Jindal for President 2016, 2020)
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To: Islander7
Adverse possession is legal. If someone has encroached on your property for 10 or more years and you have not taken steps to stop it, then that person has a claim to the land.

Right, although the number of years varies from state to state.

Some states require 10 years, some 15 or more.

IIRC, only Lousiana, whose statutes are patterned after Napoleonic law (instead of English common law), has no doctrine of adverse possession of any kind.

16 posted on 11/19/2007 9:04:13 AM PST by shhrubbery! (Max Boot: Joe Wilson has sold more whoppers than Burger King)
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To: nannystate

Unbelievable. Adverse possession - first I’d heard of it. The judge was able to get a buddy to issue a restraining order when the rightful owners started building a fence. WOW.


17 posted on 11/19/2007 9:24:36 AM PST by Girlene
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To: nannystate

I don’t see any difference between using a gun and using an arcane, unjust law to rob someone. The perpetrators of both should go to jail.


18 posted on 11/19/2007 9:26:13 AM PST by Natural Law ("The making of an American begins at the point where he himself rejects all other ties, any other hi)
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To: GreenLanternCorps; nannystate

There may have been a relationship between the people trying to take the property and the judge who issued the order. There may be aeriel photos that contradict the statements of the judge and his wife to justify taking the property.

You might be interested in reading the judge's order. He reviews the evidence that was presented, as well as outlining the case law that was used in making his decision:

http://boulderdude.files.wordpress.com/2007/11/order1.pdf

As far as I can see, the judge made his decision on the facts and the evidence, not because of some relationship with the plaintiffs (which appears to be unfounded innuendo from what I've read).

So I'd be careful of jumping to the conclusion that this is necessarily the action of a corrupt judge. Keep in mind that
- the doctrine of adverse possession is based on centuries of English common law, and is often used justifiably, and
- we're only hearing the Kirlins' side of the story -- they're the "victims" that the MSM love to celebrate.

Don't get me wrong, I'm sympathetic to the Kirlins. They didn't know about the law until too late. But as I posted on an earlier thread, I suspect they're exaggerating the negative impact of the judge's decision.

For one thing, the Kirlins own two adjacent lots, not one. The only lot affected here is a portion of their smaller lot, which they have admitted they were not going to build on anyway. They still own plenty of room to build on.

So it is not true, as the Kirlins claimed in an earlier article, that they can neither build on their adjacent [two-lot] property, nor sell it.

19 posted on 11/19/2007 9:26:56 AM PST by shhrubbery! (Max Boot: Joe Wilson has sold more whoppers than Burger King)
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To: nannystate
One thing should be clear by now.
Adverse Possession laws vary enormously from state to state, and is exclusively a state function.

But the basic requirements are not likely to vary much from state to state, with the possible exception of precedents.

The absolute requirements are "open, notorious, hostile and continuous".

Unless the thieves had a party on the property 24/7 for the required time period, the claim fails.
Unless the thieves walked on the property daily for the time period required, the claim fails.

Cronyism is the most likely factor in this case. Unfortunately, no copies of the complaint or suit has been made available, so peculiarly unique factors may be claimed that the rest of us know nothing about.

If the Kirlins decide to appeal for financial help against these crooks, I suspect an overwhelming level of support will follow.

There's "legal' and then there is "right and ethical".

I've got to look up that magic word "barratry" again...

20 posted on 11/19/2007 9:42:30 AM PST by Publius6961 (MSM: Israelis are killed by rockets; Lebanese are killed by Israelis.)
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