"Adverse possession” has been part of the common-law that we inherited from England prior to the ratification of the United States Constitution, and adverse possession remains the law in nearly every state as part of the common-law of that state or codification of the common-law. It is by no means “arcane” or a “legal loophole.” In addition, “adverse possession” does not simply give title to real property to “someone who uses another’s property for 18 years without an owner’s objection ... “ Rather, a person claiming land by adverse possession generally must establish that he or she has openly, continuously, adversely, and notoriously used the land for a long period of time (usually ten to twenty years, depending upon the state).
If, in fact, the owners walked by their land nearly every day and saw that it was being used by others, then they should have promptly taken steps to either prevent the use (i.e., put up a fence or prosecute for trespass) or given them permission to use the property so that their use is no longer “adverse” and “notorious.” Instead, they apparently did nothing for eighteen years, and therefore, they have no one to blame but themselves.
We have owned this property for 23 years, during which we lived in our home two blocks away, and have walked by our property at least once a week, all of those years. These people were not "open and notorious" at all. One of the HOA board members and a 20-plus year resident just a few doors down from the property, along with our HOA management company, testified that there were no signs that anyone was using our property!
Boulder District Judge Morris Sandstead, who served with McLean, issued the restraining order quite swiftly.
Serendipity, I guess.