Changing an ‘adverse’ law
Boulder couple leads charge on changing centuries-old law
By Heath Urie
Sunday, June 29, 2008
Photo by Mark Leffingwell
State Rep. Rob Witwer, left, talks with Susie and Don Kirlin about House Bill 1148 on Feb. 6 at the Capitol in Denver. The bill added several changes to the law of adverse possession that go into effect Tuesday. The lawmaker drafted the bill in response to Richard McLean and Edith Stevens, who used the longtime law to take a portion of the Kirlins’ land last fall.
1982: Former Boulder District Court Judge Richard McLean and attorney Edith Stevens pay $172,000 for a house next-door to a vacant lot on Hardscrabble Drive in south Boulder.
1984: Former Navy aviator Don Kirlin and his wife, Susie Kirlin, pay $120,000 for two vacant lots next to McLean and Stevens’ home.
October 2006: The Kirlins begin building a fence along their property. Five hours later, the couple is served with a restraining order applied for by McLean and Stevens; McLean and Stevens soon file a civil suit against the Kirlins, claiming adverse possession of a strip of the Kirlins’ land.
October 2007: Boulder District Court Judge James C. Klein rules in favor of McLean and Stevens, and awards them about 34 percent of the Kirlins’ next-door lot.
November: More than 200 people show up on the Kirlins property for a picnic and protest; the Colorado Supreme Court’s Attorney Regulation Counsel rejects the Kirlins’ request to investigate McLean and Stevens for ethical misconduct; two Colorado lawmakers announce they will draft a law to change adverse possession.
December: Judge Klein denies a request by McLean and Stevens to take nine additional inches of land from the Kirlins; McLean and Stevens report to police that they received a threatening package filled with ammunition and a note.
January: The Kirlins file an appeal of their case with the Colorado Supreme Court; Boulder Democratic Rep. Claire Levy, a friend of McLean and Stevens, introduces a bill that would bar Colorado judges from presiding over cases involving other current or former judges within the same jurisdiction.
February: The Kirlins file paperwork alleging McLean and Stevens fabricated evidence in the trial case.
April: Gov. Bill Ritter signs a bill that changes and adds several provisions to the law of adverse possession in Colorado, and signs legislation prohibiting judges from hearing cases involving other judges from the same jurisdiction.
May: Judge Klein rules that McLean and Stevens did not fabricate evidence. The Kirlins’ case is sent back to the Colorado Court of Appeals and is pending a hearing date.
Tuesday: Several changes to the law of adverse possession go into effect; Levy’s judicial conflict law also goes into effect.
Adverse possession is a centuries-old legal concept that allows trespassers to claim another person’s land as his or her own after certain criteria are met.
Colorado’s current law:
Requires 18 years of continuous use.
Requires actual, adverse, hostile, exclusive and uninterrupted use.
Sets the standard of evidence as a “preponderance of evidence” — or whatever seems more likely true than not.
Changes effective Tuesday:
Raise the standard of evidence to “clear and convincing” — or whatever is substantially more likely true than not.
Add a “good faith” provision that requires adverse possessors to have a “reasonable belief” the land was his or her own.
Allow judges to award damages for lost land based on its actual value.
Allow judges to award up to 18 years of back taxes paid on lost land.
Sources: Colorado Revised Statutes and the Colorado General Assembly
Stay up-to-date in our Ongoing Coverage Section for the Adverse Possession Case
VIDEO: Nov. 18 protest picnic in support of the Kirlins. WATCH »
VIDEO: Take a look at Don and Susie Kirlin's land and hear them speak about the case. WATCH »
MAP: Satellite image Google map of Hardscrabble Drive.
AUDIO: Listen to NPR's report on the case.
AUDIO: Local singer Don Wrege composed several songs about the land dispute.
- 1. Stealing Land From Our Neighbor
- 2. This Land Belongs to Don & Susie
- 3. Edie & Dick (The Grinch Theme)
Get e-mail updates as the story updates. Email automatically checks every 4 hours for new articles.
PDF: Read the court order.
PDF: Read the letter to Susie Kirlin from the Colorado Supreme Court’s Attorney Regulation Counsel rejecting her legal ethics claim
PDF: Read a letter sent from Richard McLean and Edith Stevens to their friends and supporters, in which they explain their actions.
PDF: Read a column by Boulder County Bar Association president Sonny Flowers that defends Boulder District Court Judge James C. Klein.
PDF: Read the police report about the suspicious package
PDF: Read the order by Judge Klein denying the Kirlins' case
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It’s not every day that an otherwise ordinary couple living in an upscale, sleepy neighborhood is responsible for provoking national outcry and leading the charge on overhauling a centuries-old legal concept — but that’s exactly what south Boulder residents Don and Susie Kirlin have accomplished.
At midnight Tuesday, several changes to Colorado law will go into effect that increase the legal standards for proving “adverse possession,” a legal maneuver that has allowed trespassers who openly use land for at least 18 years to claim it as their own with relatively little legal burden.
The changes also will give judges the power to force adverse possessors to pay for the land they do win in court, and to compensate the original owner for back property taxes, and interest.
Another law going into effect this week will restrict judges from hearing cases involving other judges from the same jurisdiction, in an effort to avoid conflicts of interest or the appearance of favoritism.
All of the changes are the result of dozens of state lawmakers who signed onto legislation this year aimed at preventing the abuse of adverse possession.
While the legal concept dates back hundreds of years, it was the case of the Kirlins — who last fall lost about 34 percent of a million-dollar vacant lot to neighbors Richard McLean, a former judge, and Edith Stevens, an attorney — that stirred public opinion and caught the eyes of Republican Rep. Rob Witwer, of Evergreen, and Democrat Sen. Ron Tupa, of Boulder.
“The Kirlin case focused attention on adverse possession, but at that point, anyone who went back to the books and took a hard look at adverse possession understood the law was out of balance and needed to be fixed,” Witwer said.
In looking at laws in places such as Oregon, Iowa, George, Hawaii and Alaska, Witwer said, “It was clear that abuse of adverse possession was much easier in Colorado than in most, if not all other jurisdictions.”
“The real point was to close the door on potential abuse,” he said.
Within a few days of drafting a bill toward that end, Witwer and Tupa convinced 46 other state representatives and 21 senators to sign on as co-sponsors of the legislation, which garnered nearly unanimous, bipartisan support from both chambers and the approval of Gov. Bill Ritter.
“Having passed this law, it’s now one of the strongest adverse-possession laws in the country to protect the rights of the original property owner,” Tupa said. “I think it will go a long way toward reducing the number of hostile adverse-possession claims.”
While the changes won’t help the Kirlins, the couple said they’re appreciative of the effort.
“I think the old law was never intended to be used the way it was by Dick and Edie,” Don Kirlin said. “Because of what they did, the Legislature saw the ability to misapply the law. As of July 1, no one will have to endure what we had to endure because of unethical neighbors.”
Neither McLean nor Stevens returned repeated calls seeking comment.
The couple have previously defended their actions, saying they simply applied a longtime law.
“I became an attorney because I believe in the law,” Stevens told the Camera in April. “Any suggestion we had plotted to seize the land is just false.”
McLean also has defended himself against public criticism, saying he would not compromise his reputation as a former Boulder mayor, city councilman and district court judge to win a lawsuit.
They each have said they sued only to preserve access across the Kirlins’ lot to their own backyard.
‘Neighbor against neighbor'
The Kirlins this week acknowledged the role that public outcry over their case has played in changing the law and thanked Boulder residents for their support as they await a hearing before the Colorado Court of Appeals.
“Susie and I were the catalyst, but the community of Boulder was the driving force,” Don Kirlin said of the changes. “When I’m 100 years old, sitting in a nursing home and looking back, I can know that ... we were part of changing a law.”
Susie Kirlin said it might surprise people to know that she thinks there is still room for adverse possession, which has been a part of Colorado law since the state’s inception in 1876.
“It needs to be kept on the books to solve disputes,” Susie Kirlin said. “It definitely needed tweaking — it does sort of pit neighbor against neighbor. I guess people just need to be more diligent and guarded, because there are people out there who will take advantage.”
‘Applying the changes’
While the Kirlins are pleased the changes will soon become official, what remains to be seen is just how they will play out in the courtroom.
“For adverse possession cases that are going to be filed over the next few years, people will be arguing pretty hard” over how the new provisions apply, said Geoff Anderson, a Denver-area attorney who specializes in such cases.
He said the wide variety of circumstances of each case might make it difficult for judges to apply the law, at first. He also said that the ability for a judge to force payment for adversely possessed land is the most significant part of the changes.
“If you file an adverse possession case and you win, the judge has the option of making you pay more than the fair-market value,” Anderson said. “You have to pay the value of it now, and back taxes for 18 years, plus interest.”
He said another effect of the changes might be to “switch the party that files the adverse possession case.”
Because the law allows a judge to order payment, he said, some property owners might take advantage of that fact and sue neighbors who trespass with a fence or some other unintentional encroachment. If a trespasser claims adverse possession as a legal defense, the owner would likely be awarded a substantial amount of money for the land and back taxes.
“It’s like a no-lose case,” Anderson said.
Anderson said it will be years before all the potential legal arguments over the changes are sorted out, but the intent by state lawmakers will likely prevail.
“The Legislature’s goal was to cut down on the kind of adverse possession cases McLean and Stevens brought, and I think it probably will do that,” Anderson said.
Also unknown is whether a rash of adverse-possession filings is in store for Monday, the final day to file under the current law.
Dan Pabon, a Denver attorney representing Boulder residents John and Karen Farley — who have filed an adverse-possession case against their neighbors over rights to a fence line — indicated that attorneys are well aware of the upcoming changes.
“Everyone is getting ready to file,” Pabon said. “You’ve got to get in by July 1.”
According to the Colorado Court Administrator’s Office and a Camera review of Boulder County District Court records, at least eight cases involving adverse-possession claims have been filed in Boulder County since January 2007, with at least half of those filed within the past six months.
Contact Camera Staff Writer Heath Urie at 303-473-1328 or .