Vail Law column: Adverse possession and condemnation explained, Part 2 | VailDaily.com

Vail Law column: Adverse possession and condemnation explained, Part 2

Editor's note: This is the second part of a three-part series.

In the first part of this series, we set up discussion of the "twins of different mothers" — condemnation and adverse possession — within the context of the to-do developing around the Barnes Ranch parcel in Eagle.

In short, the town of Eagle would like to glom on to a slice of privately-owned land as part of its proposed new Eagle River Park. A standoff has resulted because the parcel owners have made it clear that, even if heaven and earth collide, they have no interest in selling it the land. In reply, the town has shaken the sabre of adverse possession, stating in a letter to the owners, "We believe that Eagle County has a strong argument that it has obtained much of the property … through adverse possession." The last column laid out the playing field and introduced the starting line-up. This column explains what the afore-sabre-rattled "adverse possession" actually is. And the next deconstructs the related concept of "condemnation."

One other quickie before we march on: In defending their refusal to give up the land, one of the owner's daughter said, "We get to decide (whether we will give up the parcel). This is America!" As you will see below, indeed it is.

In part, the way the West was won was by employment of the device of adverse possession. Adverse possession is a method of acquiring legal title to real property simply by possessing it for a statutory length of time. As you will recall from prior columns, "statutory law" is law enacted by the legislature.

The implications of this are profound. A person simply occupies a parcel of real property for long enough and, by sprinkling over it the fairy dust of time, it becomes his. He acquires the legal right of ownership by hanging on for long enough and defending his interest in the land against all others. What wasn't his becomes his by the strength of pure tenacity. Of course, there are some requirements which must be met to make it so.

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'Non-permissive' use

To acquire real property by adverse possession, there must be proof of "non-permissive" use. What this means is that the person occupying the land does so without the consent of the true owner. For example, if you were to occupy real property under the terms of a lease, then possession of the land would be "permissive," that is, with the knowledge and consent of the owner. In a "non-permissive" holding, the person occupying the land does so without the owner's knowledge and consent. No one has given him the legal right to occupy the land and, accordingly, he does so adversely to the actual owner's interests.

To acquire realty by adverse possession, the adverse possessor's occupation must also be "actual, open, notorious and exclusive," and must continue for the requisite statutory period. "Actual" is easy; it means that the adverse possessor is "on the land" and has taken dominion and control of it. It is not enough, for example, to simply claim possession of the land; one must be "established" on it.

"Open" means other than by stealth. A structure or some other evidence of purported ownership must be evident. Fences must have been erected, livestock raised, crops grown and taken to market, profits made, water wells sunk … that sort of thing. In the Barnes Ranch circumstance, the town has apparently fenced and used the parcel "for decades."

"Notorious" means generally known and talked about. It is common knowledge that So-and-So is on that land and calls it his, or, in the case of Eagle, it is common knowledge that the town has claimed and used the land for years.

"Exclusive" means that the putative "owner" claims the land as his and only his. He claims his right to the land to be superior to all others who may lay claim to it. The occupant intends to claim and hold the property in opposition to all the world. It's his and no one else's. Period.

Additionally, in some but not all states, even if the adverse possessor ends up with the land, then he must compensate the actual owner its fair value.

How long it takes

The statutory period required to acquire land by adverse possession varies from state to state. In some, adverse possession may be perfected in as little as five years. In others, the period of actual, open, notorious and exclusive possession can stretch to 20 years or more. There may be different periods of time which are applicable in different circumstances within a single state, depending upon whether the adverse possessor has "color" of title and/or whether or not taxes have been paid upon the land and, if so, by whom. In some cases, longer possession is required against public entities as compared to individuals.

"Color of title" is the concept that there is the appearance or semblance of title, or the legal right to claim the property, as yours. There "appears" to be a legal right to ownership held by the person claiming it. In fact, color of title is sometimes referred to as "apparent title." It appears from some extraneous fact or circumstances, other than the mere claim to the land, that, except for some defect, the claimant is the true owner. Accordingly, in some states where there is an appearance of true ownership, the road to ownership via the route of adverse possession may be swifter in order to prevent injustice.

What is laudatory about adverse possession is that the adverse possessor is rewarded for making nonproductive land productive. Land that has lain unoccupied and unused can be put to productive use and the person putting it to such use is rewarded with its ownership. What is scary, though, is that an owner who sleeps on his rights can forfeit ownership by the mere construct of his inactivity. Someone is openly and notoriously occupying your land against your interests but, since you are not using it, you do nothing. If you continue to do nothing for long enough, then you may find, one day, the property is no longer yours.

It's sort of like finding a lost kitten, caring for it and raising it. After a time, that kitten is no longer lost, but becomes a member of the family. You, the one that raised and nurtured it, acquire it as yours.

In the next part, you will want to buckle your seatbelts as we explore the at times frightening world of condemnation.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.