Fence fight brews in Boulder
City Councilman proposes using adverse-possession law to claim land
By Heath Urie
Friday, April 25, 2008
Photo by Paul Aiken
Margot Bergner writes down the name of Phil Karl at Vista Village on Thursday evening. The two residents were upset that a new fence built by the mobile home park's owner has blocked access to hiking and biking trails. Bergner was trying to arrange a community meeting on the fence.
Adverse claims
The law of adverse possession can be applied two ways.
Title to land is awarded if an individual can prove using another person's property in an "open, actual, adverse, hostile, under right of claim, exclusive and uninterrupted" manner for at least 18 years.
An easement by prescription is awarded if all the elements of adverse possession are proven, with the addition that multiple people can prove the same claim. An easement gives individuals the right to access the land in a manner consistent with its historic use, but not to alter the property or own it.
Sources: Boulder attorney Scott McComas and Colorado Revised Statutes
A land law that has caused a stir in one south Boulder neighborhood is working its way into another property dispute involving two north Boulder neighborhoods and a California businessman.
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Boulder City Councilman Macon Cowles on Thursday said he's asked city attorney Jerry Gordon to look into ways the city can force the removal of a fence installed last week by the owner of the Vista Village mobile home park in northeast Boulder -- including, possibly, "adverse possession."
Some residents of Vista Village and the nearby Kings Ridge neighborhood are upset with a decision by park owner Harvey Miller to fence off a longtime access point between the two developments that also connect to different open space areas.
Cowles said the mobile home park is considered private property, but the potentially decades of public use of the path could be enough to prove some form of adverse possession. The long-standing legal concept allows people who openly use others' property unchallenged for at least 18 continuous years to claim the land -- or the public's right to use the land.
"It's pretty incredible that somebody would block off what has been a traditional pathway like that," Cowles said. "I think the city needs to investigate."
The concept of adverse possession has been around for centuries but was recently thrust into the spotlight after Richard McLean, a former Boulder district court judge, and his attorney wife, Edith Stevens, used the law to successfully sue neighbors Don and Susie Kirlin for a portion of their vacant next-door lot.
Cowles said he doesn’t want to use the law to take the Vista Village property; rather, he said, it could be used to force the property owner to continue to allow public use of the path. Such a use would be termed a “prescriptive easement,” which instead of transferring ownership simply allows a right of access.
“It’s a right which would be based on the historic use of the public on the pathway,” Cowles said. “The city does not need to engage in the taking of another person’s property, like what happened with the Kirlins.”
Exactly how the city might go forward is unclear, Cowles said, but he intends to have Gordon compile a report about the city’s options as early as next week.
Miller, who has an office in California, has not returned several phone calls this week.
Boulder attorney Scott McComas, who specializes in property disputes and land law, said residents of the two neighborhoods have a potentially strong case against Miller if they choose to pursue it.
“Once you establish a use for 18 years ... then you’ve got an easement by prescription,” McComas said. “It’s the law. It’s very difficult to defend against.”
McComas noted, though, that by building the fence, Vista Village has interrupted the “continuous use” requirement of an adverse-possession claim, effectively starting the legal clock over for anyone who hasn’t used the path at least 18 years.
Vista Village resident Tanya Petty has lived in her home for 18 years, and she said she’s up for the fight against a blockade that forces her children to use busy streets rather than the walkway.
“I would like to take Harvey to court and file for the easement, because I have been going through there for 18 years and I have been using it for an access,” Petty said Thursday.
“A lot of people are upset about it,” she said, although that doesn’t apply to everyone.
Rick Moreland, a Vista Village resident since 1974, said he likes the fence because it keeps people and dogs out of the park.
“I agree with Harvey Miller,” Moreland said. “It’s about time they put that fence up there.
“I think it’s a lot better to keep the people out from the other side.”
Moreland said the disputed path has been around at least since he moved in, although he’s never used it.
City Councilman Cowles said residents in the affordable-housing community should not have to spend their own money to fight for public access.
“The residents of the mobile home parks like Vista Village have really precarious lease arrangements with their landlord,” Cowles said. “They would actually put themselves at risk of eviction if they brought a lawsuit.”
Jody Jacobson, spokeswoman for the city’s planning department, said Vista Village managers on Thursday paid a fine for not properly applying for a fence-building permit. Although the fine earlier this week was estimated to be about $100, Jacobson said a final valuation of the fence means the fine was only $10.
Contact Camera Staff Writer Heath Urie at 303-473-1328 or .
Adverse claims
The law of adverse possession can be applied two ways.
Title to land is awarded if an individual can prove using another person's property in an "open, actual, adverse, hostile, under right of claim, exclusive and uninterrupted" manner for at least 18 years.
An easement by prescription is awarded if all the elements of adverse possession are proven, with the addition that multiple people can prove the same claim. An easement gives individuals the right to access the land in a manner consistent with its historic use, but not to alter the property or own it.
Sources: Boulder attorney Scott McComas and Colorado Revised Statutes