Greenlee: Our adverse possessions
By Bob Greenlee
Sunday, February 24, 2008
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It's refreshing to witness a rare example of bipartisan legislative action at a time when political gamesmanship is sometimes all that matters. Congratulations to Colorado's House of Representatives for passing reforms to the current law of "adverse possession" that dramatically demonstrated its outrageous provisions in a recent case involving two Boulder couples.
By now most everyone is aware of the sobering details surrounding the McLean/Stevens versus Don and Susie Kirlin adverse possession dispute. The decision that was rendered by Boulder County District Judge James Klein cries out for a final resolution. Unfortunately, the process of regaining ownership of the land that was taken away requires that the Kirlins mount an aggressive challenge to the judge's findings.
Last week, they filed court documents that accuse McLean/Stevens of "fabricating evidence" in order to win their adverse possession claim. That claim was not well received by McLean/Stevens and led them to assert they were "outraged" by such a declaration. Perhaps it's some form of convoluted justice that the couple now has a sense of what outrageous behavior feels like.
This dispute, which should never have reached the point of litigation, will have no real winners. The case has been costly to both parties both emotionally as well as financially. The case has also shaken a number of Boulder citizens who now understand that their assumptions about personal property rights are always subject to the decision of judges and a handful of out-of-control elected officials.
Municipal and county officials are constantly challenging private property rights in Boulder County and elsewhere, whether it's the location, height, size or design characteristics that they want to forcibly manipulate. Every now and then, it takes an outrage like this adverse-possession claim to stir our sense of fair play and demand a legislative fix.
Thanks go to state Reps. Claire Levy of Boulder and Rob Witwer of Evergreen, who are co-sponsors of new provisions to the adverse-possession statute. All 11 members of the House Judiciary Committee allowed the bill to be voted on by the full House. (Only Douglas Bruce voted against the bill.) Sen. Ron Tupa from Boulder has also thrown his full support behind the new bill once it reaches the upper body. These bipartisan efforts demonstrate that some issues cry out for reform and that political differences on other issues can be temporarily set aside to accommodate reversing the consequences of a bad law.
Claims of adverse possession are not always without merit. However, in cases where the potential for abuse exist, the new law will require a "good faith" demonstration that the land in question deserves greater scrutiny before the disputed land can simply be handed over to someone else. The burden of proof in an adverse-possession case will be raised, and judges will be granted power to make sure those making claims will pay something for the land they might be awarded.
Witwer stated that Colorado was "one of the easiest states in the nation for someone to take someone else's land." If so, the revised statute will bring Colorado's land-use law more in line with other states. He also stated that: "What happened to Don and Susie Kirlin was an injustice." Amen.
Not even the most liberal interpretation of Colorado's adverse-possession laws should condone confiscation of the Kirlins property by their neighbors. McLean/Stevens admitted that for more than 18 years, they illegally trespassed on their neighbor's property. Then they used the courts to wrest what was not theirs.
For some, this land dispute is trivial. In a Camera editorial the matter was once described as "a trifling border dispute (that) should barely make the public radar." Thank heavens for radar and for thoughtful legislators.
Bob Greenlee was a member of Boulder City Council for 16 years and served his last two years as mayor. He can be reached at: .