'Use or it lose it' applied to landowning
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BOULDER, Colo. -- For more than 20 years, a retired judge and his lawyer wife trespassed on a vacant lot next door to their home.
They planted a garden there and stacked their firewood. They held parties there and walked the land so often they wore a path in the grass.
In 2006, Richard McLean and Edith Stevens claimed the land as their own under Colorado's adverse possession law, once known as "squatters' rights." In October, a district judge awarded them one-third of the lot, which its owner values at $1 million.
Although the couple won in a court of law, they have not fared well in the court of public opinion in this university town, where the case has sparked a protest and calls for change to the law.
The doctrine of adverse possession, which says a person can gain possession of property after using it without challenge by the owner for a certain length of time, isn't a new or obscure legal doctrine. Still, its application in this case has residents fuming.
"This scares the hell out of landowners," said Don Kirlin, the man whose property was taken away. He and his wife, Susie, first took it as a joke when he heard of the couple's designs on their land.
In 1984, Mr. Kirlin, a commercial airline pilot, and his wife, a former teacher, bought two adjacent lots on the southern edge of the now-pricey city. They lived in a home a short distance away, but hoped to build their dream house on their vacant land, which abuts city-owned open space, a rolling expanse of ponderosa pine and native grasses.
They frequently walked their dogs past their vacant land, but say they never saw any sign that anyone was using it. Nor did they think to worry about such a thing, Susie Kirlin said. After all, they paid their property taxes and homeowner fees. They sprayed for noxious weeds and repaired fences. What else did an owner have to do?
That attitude speaks to misconceptions about property ownership, said Cornell University law professor Eduardo Penalver. "There's a mythology of land ownership -- that if you own land, you can do anything you want," he said. Property rights are limited, he said. "This is one of those limitations: If you're not vigilant, it could be taken."
The law is based on a philosophy that land should be used, said Denver real estate lawyer Willis V. Carpenter. "If you don't use it, and someone else does, they'll end up owning it."
Every state has an adverse possession law, although the requirements for bringing a case differ widely. For example, the length of time that a person must show uninterrupted use of another's land varies from five to 30 years. "Most courts are not disposed to easily give land away," said Spencer W. Weisbroth, a San Francisco lawyer.
Public reaction also depends on who's claiming the land. In a highly publicized case in London, a homeless man this year won ownership of a small plot in a tony neighborhood where he had lived in a shack unchallenged for 21 years. He was seen as a sympathetic figure.
That wasn't the case in Colorado, where Boulder District Judge James C. Klein -- who has served since 2005 in the same judicial district where Mr. McLean served as a judge from 1981 to 1997 -- ruled that the couple had demonstrated that their attachment to the land was "stronger than the true owners' attachment."
"Whereas defendants were unaware of plaintiffs' use of the disputed land during virtually their entire 22-year period of ownership, plaintiffs have efficiently used the land on a daily basis," Judge Klein wrote in his opinion.
The judge granted Mr. McLean and Ms. Stevens one-third of the lot next to them. That decision rendered it too small to sell or to build a home on, Mr. Kirlin said.
The Kirlins and Mr. McLean and Ms. Stevens each say they made efforts to settle the matter -- but that the other party would not accept the offers.
First Published December 9, 2007 12:00 am
