Posted on 11/12/2007 6:44:32 PM PST by beaversmom
Edited on 11/15/2007 7:42:04 PM PST by Admin Moderator. [history]
BOULDER -- A warning for property owners. A little-known law could allow a trespasser to take your property without paying a penny for it.
(Excerpt) Read more at myfoxcolorado.com ...
Here is the court’s decision on this case with some interesting findings of fact:
http://boulderdude.files.wordpress.com/2007/11/order1.pdf
LOL! That's a crime. It's a felony up here.
If one has title insurance, the title co. does the verifying. If they're wrong latter, their lawyers handle it, and pay the costs of the litigation and loss.
No, the title insurance did their job. The title ins co would have verified the survey, and noted that no claims were on the property. It was up to the owners to keep the guy from using their property, which they did not do.
What is the point of having such a law?
Why does the owner deserve to be punished because someone tresspasses on his land?
The owner has a deed. The owner therefore knows the land is his.
The squatter does not have a deed. The squatter therefore knows he's tresspassing, and tresspasses anyway.
I do not see the justice in punishing the owner.
Why should it be up to the owners to tell someone they have no right to be on his land?
A burglar knows he cannot steal someone's stuff, and does not need to be reminded by the owner that stealing stuff is illegal.
The tresspasser also knows he's stealing use of someone else's land--the tresspasser shouldn't need the owner to tell him he's tresspassing.
Does the title company verify that the fences are in the right place? This was a case in which the titles were correct but the fence was wrongly positioned. I’m not sure I’ve heard of title companies sending surveyors out to ensure fences are properly placed. It would be great if they did but I had the impression the title company was in the clear in this case.
Personal responsibility. It shows the owner cares about his property.
"A burglar knows he cannot steal someone's stuff, and does not need to be reminded by the owner that stealing stuff is illegal."
If the homeowner leaves his doors open and doesn't do anything about the constant burglaries for 20 years, then folks will get the idea the guy don't care.
"The tresspasser also knows he's stealing use of someone else's land--the tresspasser shouldn't need the owner to tell him he's tresspassing."
Yes, that's why it's called adverse possession. The person is claiming a right to the land and using it as if he did have right to it. The same thing the Brits and Spanish did, and the Indians before that.
World Net Daily has picked up on this:
Retired judge: This land is my land Jurist rules in favor of colleague, snatches $1 million parcel
http://www.freerepublic.com/focus/f-news/1925997/posts
Thanks for linking the court documents.
Yes. They want a survey that would show encroachments and the results of any are disclosed and indicated in the policy. The policy itself warantees that the land is what is described in the deed, hence hte survey. The info is available before closing.
"I had the impression the title company was in the clear in this case."
I've never heard of a reputable title co. failing to want a survey and leaving out that part of the coverage. Condos are different... The surveyor could be wrong, but then the responsibility falls on them.
Thanks. We were told no one was on the hook but the owner but perhaps they were later able to claim against the title company.
1) Appeal
2) Toss the judge out
3) Retribution
It's possible that the pool/fence might have been placed subsequent to the original purchase, and incorrectly by some contractors. Then the liability would depend on what the homeowner's instructions were. The story says to me, that the homeowners were probably screwed by someone and their lawyer didn't care, to discover who it was and go after them. Note the new buyer's atty and the title examiner were diligent and prevented them from getting screwed. That's how the original owners should have been cared for, in the case the pool and fence were put in by the developer.
In a more general sense, not only is it property rights that are effected by adverse possesion, but rights themselves are. Politics involves a fight againt those that are mounting a hostile grab attempt on the rights of others and between those that are attempting to grab them for their own purposes.
Here’s the scenario:
1988: Lot 1 is developed next to raw land by developer which installed lot fence improperly, fencing out a long wedge which reached 8’ at its widest. Original owner and subsequent owners make no changes to the fence. No indication anyone suspected the lot was actually smaller than platted.
1993: Raw land behind fence is developed into Lot 2 with backyard facing 1988 lot fence so new development merely added side fences to meet up with the 1988 fence. Purchaser of Lot 2 has no reason to believe the back fence is in the wrong place, adding square footage to their lot. They install a pool and spa in accordance with city regs and begin paying an increased property tax based on the improvements.
2004: Owners of Lot 1, the original too-small lot, want to build outbuildings and run into objections from the city based on the square footage of their lot. (At the same time, owners of Lot 2 put their home up for sale in order to retire.) In the process of fighting with the city the Lot 1 owners discover the fence is in the wrong location according to the deed. They sue owners of Lot 2 and demand Lot 2 allow the fence to be moved to the proper location (i.e., destroy the pool and fill it in) or, in the converse, pay $90K in damages for 385’ feet contained within the fence line of Lot 2. Lot 2 owners lose one sale. Eventually they end up paying over $20K to settle the matter and sell the house.
It seems to me the most obvious wrongdoer was whoever put the fence in the wrong location in the first place. From that moment on, everyone relied on the placement of the fence to make decisions. My beef is that the consequences fell on basically the last one in the line of those who relied on the mistake. Responsibility for the fence seems to be either with the developer or the original owner of Lot 1 since the fence was placed four years before Lot 2 even came into existence. After a certain number of years, there ought to be a statute of limitations to bar actions like this. The biggest problem was the assessor’s office could not prove the taxes had been paid on the lot since apparently the assessor based the taxes on the deed description and so the Lot 2 owners couldn’t prove, even with the pool reassessment, they had paid taxes on the encroachment.
Moral of the story, I guess, is to be completely safe, every home purchaser should commission a survey to ensure the deed description is correct and fences are properly located, even in developments. That costs around $3k here.
That's about 20, or more years. Lot 1's owners were right to have lot 2's owners either return the land, or pay.
The developer of lot 2 obviously did not have and file a valid survey. IMO, the developer of lot 2 knew the fence was in the wrong place and chose to shut up about it, because the larger lot was a more attractive sale. The buyer's atty and title co(if they had those)as agents for the buyer, were responsible for noting the encroachment of lot 2 onto lot 1. Ultimately the buyer is responsible though. Depending on what Lot 2's title co covered, they should have gone after the developer and their survey team to discover and seek remedy for loss suffered by the lot 2 owners. Generally the policy itself notes encroachments both ways.
"Purchaser of Lot 2 has no reason to believe the back fence is in the wrong place"
They had no reason to believe it was in the right place either. They did get a deed with dimensions, and should have at least used a tape to measure their lot. They should also have obtained a survey and improvement map showing the location of all improvements including the fence, or abscence of it. A fence can go anywhere on, or off someone's property. Spending the time to check the survey docs against their own measurements would have been a low cost and productive way to prevent this problem.
"Responsibility for the fence seems to be either with the developer or the original owner of Lot 1 since the fence was placed four years before Lot 2 even came into existence."
Lot 1's owner may have a beef with the fence guy/developer, but he still ownered all the land he was deeded, and was entitled to it, regardless of the late discovery of the problem. Lot 2's owner was careless in placement of his improvemnets and attempted to use more land, than he owned. Before and after he closed, he had possession of all the docs describing his property and should have checked them, or had someone who could use a tape check. They used to teach geometry in HS, so folks can do this. Another survey would only be prudent, if the tape measurements showed a significant problem. He was especially careless when he put a pool in and assumed it wasn't encroaching on someone's land. I'm surprised the city and pool guy didn't catch the problem.
At any rate, I don't know the statute of limitations for all the BS moves I suspect here, that were made by developer No.2, his surveyor, and possibly the title examiner in whatever state this was in. I think it's been too long to go after them if the limit starts from the last "mistake", but maybe not for fraud in the case of the developer/inspector, and there's a good chance the courts there have found the clock starts at the time the "mistake" is discovered. Lot 2's former owner should have a knowledgable RE atty go over it again and explain all that went down, and give the reasons why there's no recourse to collect from those who sold him more in promise, than in fact.
Absolutely unbelievable.
It appears that Edith is the Treasurer for Clair Levy, representing Colorado’s 13th House District in the
Colorado legislature.
Richard Mclean (303) 494-3324 2059 Hardscrabble Dr,Boulder, CO 80305
Excellent points. I believe the developer statute of limitations is only five years. I certainly have learned to be more cautious about trusting a developer. This is in California and in the go-go years of developments springing up overnight. A lot of garbage was going down with developers, city governments hungry for taxes, and fly-by-night builders. I’m just glad we didn’t get caught in it. There are several other pending cases of fence misplacements around the city and in some of these developments, one misplaced fence can throw off five or more parcels. I’ll pass along your excellent advice to my friends who now live in Nevada. Thanks.
You’re welcome.
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