"[O]ur property becomes a part of our being, and cannot be torn from us without rending us to the quick."1
Adverse possession was developed centuries ago as a way to provide certainty to title holders by creating certain presumptions about ownership. If an occupant of a piece of property could establish a pattern of ownership to the exclusion of others, which was “open and notorious” for an extended period of time, the presumption was that person owned the property outright. The burden of proving the property was not used exclusively would then shift to the landowner defending against the claim of adverse possession. In Colorado, lawmakers codified the law on adverse possession, meaning that any claim to adverse possession must meet the statutory requirements. To succeed on a claim of adverse possession, a claimant must prove by clear and convincing evidence that the possession of land was:
- Under a claim of right
- For a period of at least 18 years
Further, for every claim where title would have vested after July 1, 2018 (i.e., claims where the eighteen-year period did not finish until after that date), claimants cannot prevail unless they (1) present evidence to satisfy all of the common-law elements of adverse possession, and (2) demonstrate that either they or their predecessor in interest had a good faith belief that they actually owned the land, and that the belief was reasonable under the circumstances. The court may also require the claimant to compensate the party losing title for the actual value of the lost title and for the taxes paid over the last eighteen years on that property, increasing the risk of bringing an adverse possession claim.
1 Jeremy Benthan, The Theory of Legislation, Principles of the Civil Code, pt. I, ch. 10, at 115 (C.K. Ogden ed., Richard Hildreth trans., Routledge & Kegan Paul Ltd. 1950) (1789).