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Adverse Possession Boulder 2007. A Definition Adverse possession is a principle of real estate law whereby somebody who possesses the land of another.

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Presentation on theme: "Adverse Possession Boulder 2007. A Definition Adverse possession is a principle of real estate law whereby somebody who possesses the land of another."— Presentation transcript:

1 Adverse Possession Boulder 2007

2 A Definition 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. The real property is acquired without compensation.

3 The law of adverse possession is partly common law and partly statutory law. The required period of uninterrupted possession arises out of a statutory limitation period (aka the “statute of limitations”). In Colorado, the statute of limitations is 18 years.

4 “Seisin” In English feudal society, possession gained credibility with the passage of time. Seisin was not ownership nor was it mere possession that could be established by the seizure of land. Seisin belonged to someone who used the land or exercised rights over it.

5 Requirements for adverse possession Adverse possession requires three elements in regards to the possession of the property: –physical: open and notorious (visible); actual; exclusive; –mental: hostile; –temporal: continuous (uninterrupted). In simple terms, this means that those attempting to claim the property are occupying it exclusively (keeping out others) and openly as if it were their own. Generally, the openly hostile possession must be continuous (although not necessarily constant) without challenge or permission from the lawful owner, for a fixed statutory period in order to acquire title. In Colorado, the statute of limitations is 18 years.

6 An extended set of requirements: 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.

7 Common Defenses against Adverse Possession lawsuits Permissive Use - If the actual owner has granted the claimant permission to use the property, the claim of "adverse possession" cannot be deemed "hostile" and thus fails. Insufficient Acts - Although it is conceded that the claimant engaged in some use of the property, these acts were not sufficient to amount to acts suggesting a claim of ownership. Non-Exclusive Use - Although it is conceded that the claimant engaged in some use of the property, others (usually the property owner) also used the property in a manner consistent with that of the landowner. Insufficient Time - Even if various elements of adverse possession were met, the adverse possession did not last for the full statutory period, or that the adverse possession was interrupted by a period of non-use.

8 Circumstances of the adverse possession determine the type of title acquired by the adverse possessor: –fee simple title, –mineral rights, –or another interest in real property

9 England and Wales - Home of the Common Law In England and Wales, adverse possession has been governed by the Limitation Act 1980.The limitation period for the adverse possession of land is 12 years. But the position of a registered landowner has been greatly improved since the passage of the Land Registration Act Where land is registered, the adverse possessor may apply to be registered as owner after 10 years of adverse possession. The Land Registry must give notice to the true owner. This notification gives the land owner 65 business days to object to the adverse possession, after which the true owner will have a further two years in which to evict the adverse possessor. This effectively prevents the removal of a land owner's right to property without their knowledge.

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24 -- How for File an Ethical Grievance Posted by Reality_Check Just because it was Legal doesn't mean it was Ethical. Therefore the Kirlins -- or ANY interested parties -- can and perhaps should file a Grievance with the Colorado Supreme Court Disciplinary Committee regarding Dick McLean's and Edie Steven's unethical behavior. There have been 100s of attorneys suspended or disbarred for unethical acts which themselves were perfectly legal. Colorado Supreme Court Office of Attorney Regulation (303) or 1 (877) The complaints must be in writing, so don't harangue the secretary there when calling. Just ask that a Grievance Complaint package be mailed to you. Don’t explain the case to the clerk on the phone, just ask that a complaint package me mailed to you. In the odd chance a clerk there tries to refuse or dissuade you, get their full name for the record. Every person in Colorado has standing to bring a request for ethical violations against any attorney they have knowledge of who may have acted contrary to the rules of professional conduct. You do not have to he a party to the action in question, you do not have to be directly involved with said unethical attorney. Acts which tend to place the Legal Profession in a bad public light are frowned upon, whether legal or not. Deliberately exploiting the arcane Adverse Possession law, by a professional Lawyer/Jurist, to their own personal financial advantage against lay-person neighbors, in a modern residential development is, at a minimum, abusive.

25 Rules of Professional Conduct Rule 8.4 Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the act of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a judge, judicial officer, government agency or official; (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; (g) engage in conduct which violates accepted standards of legal ethics; or (h) engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.

26 Here's the primary violation in question: (c) engage in conduct involving DISHONESTY, FRAUD, DECEIT or MISREPRESENTATION; [I]n order to prosecute and prevail in their Adverse Possession action against the Kirlins, McLean/Stevens had to confess and stipulate to those elements -- dishonesty, fraud, deceit -- in order to meet the requirements of Adverse Possession. Points of Fact: McLean/Stevens KNEW the property wasn't theirs. McLean/Stevens willfully and deliberately trespassed on said property for years, knowing those actions would eventually cause severe financial harm to their neighbors. McLean/Stevens KNEW the rightful owners lived next door and took no effort to directly contact them about their actions and intent.

27 McLean/Stevens KNEW that their continued trespass of their neighbor's property would eventually result in conversion of said property to the sever financial harm and detriment of their neighbors, and to their own selfish benefit. McLean/Stevens acknowledged it was their INTENT to "hostilely occupy and take" the Kirlin's property as their own, without permission, without compensation, and against the will of the Kirlins McLean/Stevens KNEW that if they disclosed their habitual trespass, and/or their intent to "hostilely occupy and take the property" directly to the Kirlins at any time prior to 18 years it would extinguish the claim. McLean/Stevens hid their intent to convert the property from the Kirlins in order to profit personally. IPSO FACTO - "conduct involving dishonesty, fraud, deceit or misrepresentation"

28 "... ours is a sick profession marked by incompetence, lack of training, misconduct and bad manners. Ineptness, bungling, malpractice and bad ethics can be observed in court houses all over this country every day... these incompetents have a seeming unawareness of the fundamental ethics of the profession." -- Chief Justice Warren Burger

29 Adverse possession has been part of property law virtually since the inception of the US - and is in place all over Europe as well. It was put in place to prevent people from acquiring massive plots of land and not using them. There is an excellent piece on it at law.freeadvice.com/real-estate-law/adverse_possession.htm In Colorado, eighteen years of adverse possession is conclusive evidence of absolute ownership before one can lose the property to squatters. If the Kirlins had simply fenced the property as soon as they bought it - or evicted the neighbors the first time they encroached on the property, the law would have been on the Kirlins' side. They chose not to protect their land - probably because they didn't know about a law which is being abused for personal gain by their neighbors. In all probability, the Kirlins are screwed, although I would immediately be contacting a property lawyer to sue for property taxes & homeowners' dues paid (although the fact that the Kirlins paid those taxes & dues may "save" them - since many states accept payment of property taxes as proof that the property is not abandoned).http://real-estate- law.freeadvice.com/real-estate-law/adverse_possession.htm

30 “The intent of this common-law concept is really OK--and has to do with abandoned property which then someone else takes care of. The intent was clearly not what happened here. The judge who made this ridiculous ruling should be recalled--and perhaps the law should be changed to require that people who intend to make such a claim give notice to the current owners rather than take property by stealth.”


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