LIVE IN A PROPERTY INEXPENSIVELY VIA ADVERSE POSSESSION.

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1 LIVE IN A PROPERTY INEXPENSIVELY VIA ADVERSE POSSESSION. What is Adverse Possession? Through adverse possession, one may obtain title to another's real property (without paying for it) by using the property for a specified period of time in a way that conflicts with the true owners' rights. Adverse Possession requires the actual possession, adverse, hostile, under a claim of right, exclusive and uninterrupted for the statutory continuous period of eighteen years, or 7 years if there has been the appearance of title and payment of taxes in the state of Colorado. What are the Definitions of Adverse Possession Requirements? Actual Possession: Actual possession is defined as the use of the real property that a true owner would typically make of the land, and such use is consistent with the character of the land. In other words, use the property as the owner would. Adverse: This means an interest contrary to the interest of the record owner made by claimant and evidenced by some clear, positive, and unequivocal act. The possession of the property must be such that the record owner of the property can visually observe that another party is claiming possession of the subject property i.e., open and notorious. Examples of open and notorious possession include fencing, erection of a building, cultivation, or other uses of land that would customarily occur with actual ownership. Such possession cannot be secret or hidden. In other words, occupying residential dwelling such that the record owner of the property can visually observe that another party is claiming possession of the subject property. This includes but not limited to, activate the utilities, watering and mowing the lawn, parking in the driveway, setting patio furniture on the front porch, etc. Hostile: The claimant under adverse possession claims ownership against all others, and such claim of ownership includes both the record owner and the general public. This is where I come in, ask me how to accomplish this. Ethan Eaton at (719) Under A Claim Of Right: The adverse possessor claims an ownership interest of the subject property. To validate this claim, the adverse possessor cannot recognize the ownership of the true record owner of the real property. The Supreme Court of the United States has ruled that the mere intent to take the land as one's own constitutes "claim of right." Exclusive: Exclusive possession means there can be no sharing of possession with the legal holder of title or the general public. Uninterrupted For The Statutory Period: The adverse claimant s possession must be uninterrupted for a period of 18 years, or 7 years if there has been the appearance of title and payment of taxes. Uninterrupted possession requires only the degree of occupancy and use that the average owner would make of the property. The person claiming the property by adverse possession cannot relinquish the land to another for any period. Will I Get Title (Ownership) Of The Property If I Meet All These Requirements? NO, or it is highly unlikely. Colorado Revised Statues regarding adverse possession were amended on July 1, To prevail on a claim in any civil action for adverse possession after July 1, 2008, the adverse claimant must prove each element of adverse possession as set forth above by clear and convincing evidence. In addition to the elements of adverse possession mentioned above, the claimant must also prove that it had a good faith belief that the adverse possessor was the actual owner of the property, and that such belief was reasonable under the circumstances. In other words, you have to believe that you owned the property, i.e. a property description led you Adverse Possessor s Initials 1

2 to believe that you were entitled to property that you actually weren t, or a survey was incorrect and said you owned land when in fact you did not. Since we are knowingly attempting to adverse possession someone s house we know is not ours, we will likely not obtain title. What Is Our Goal If We Cannot Establish Title (Ownership)? Our goal is to appear as though we are going to obtain title (ownership) through adverse possession, when we know that it is highly unlikely that we will be successful. Just because we know we will be unsuccessful, nothing is preventing us from not trying. Once we start the 18 year clock, we must live in the property uninterrupted, but common law or Colorado Statute does not require us to pay taxes or pay rent or pay anything to, or on behalf of the owner. Should I Pay Real Estate Taxes (Ad Valorem Real Property Taxes) And/or Any Mandatory Home Owners Association (HOA) Fees While I Possess The Property? Although paying ad valorem real property taxes and/or HOA fees are not required, if either or both of these go unpaid, they may foreclose and take possession of the property, thus having the ability to evict you from the property. You are highly advised to pay both, if both are applicable to the property. Why is Adverse Possession Allowed by State Law? Adverse Possession is allowed under State law so the land and its improvements will not create a nuisance, i.e. property subject to vandalism, use by transients, deterioration and/or dilapidation, creating unsanitary and unsightly conditions, delinquent real property tax payments, maintain the integrity of the house, keep the utilities activated, maintain and/or retain property values in the area, etc. Really, the government wants someone to keep the property in good shape and keep paying taxes. Aren t we Trespassing? Yes, but there are two kinds of trespass, criminal trespass and civil trespass. Adverse Possession is considered civil trespass and actually allowed and required for Adverse Possession to be successful. A trespasser can come onto land, occupy it and gain legal ownership of it. The trespasser may acquire a few feet of property or whole acres in this way. The trespasser is not necessarily an intentional evildoer far from it. A trespasser may be entitled to legal ownership of property if his occupation of the property is actual possession, adverse, hostile, under a claim of right, exclusive and uninterrupted for the statutory continuous period of eighteen years, or 7 years if there has been the appearance of title and payment of taxes in the state of Colorado. Note: Colorado Revised Statutes gives the following: 1. To maintain adversity, use cannot be with permission during the prescriptive period. Hunter v. Mansell, 240 P.3d 469 (Colo. App. 2010). 2. The law of prescriptive easements [similar to adverse possession] permits acquisition of enforceable property rights through unlawful action, namely, trespass for the prescriptive period of time. Clinger v. Hartshorn, 89 P.3d 462 (Colo. App. 2003). What Properties are Subject to Adverse Possession? Any property is subject to adverse possession, except government affiliated property. However, we identify properties that have been vacant for some time, around a year or longer. For some reason the homeowners vacated the properties and now they are sitting idle. Since the property has been vacant for such a long Adverse Possessor s Initials 2

3 time, it s reasonable to assume that the owner has no interest in the property, or that the property is not a vacation home. How is Colorado Home Ventures Involved? We discover properties that have been vacant for some time. Once we feel that a property is a good candidate for Adverse Possession, we enter the property to make certain it is not being occupied by anyone, send the current owner certified mail, return receipt requested to their last current or most recently reported address, expressing our intent to adverse possess the property (so they know what we intend to do), change the locks, create documents to be filed by you, the potential occupant. What are the Risks? Some potential risks including but are not limited to: 1. The owner and/or a relative may return to the property and file a motion to have you evicted. They must bring suit to recover real property held by another in peaceable and adverse possession not later than eighteen years. Usually we ll have approx. three weeks or longer before the eviction is heard by a judge, which should be enough time to vacate and find a new place to live. At this point we ll need to talk to the owner and see if we can negotiate some sort of alternative and/or buy some extra time. 2. Adverse Possessions main intent is to have the Adverse Possessor (the one who possesses the property) eventually acquire title to the property by possessing the property. Please know that acquiring title to the property is HIGHLY UNLIKELY. Rather our intent here is to get you into a vacant/abandoned home at a relatively low monthly cost, not obtain title. Again, you will not likely obtain title to the property. Should you wish to pursue title to the property, you are advised to seek the advice of a competent real estate attorney/lawyer. 3. The property may be subject to a Foreclosure action by a lender, HOA and/or local taxing entities who has a financial interest in the property. If this occurs, and the entity who repossesses the property or a third party buyer purchases the property through the local trustee may file a motion to evict you. At this point we ll need to talk to the either the entity causing the foreclosure and/or their representatives or the third party buyer and see if we can negotiate some sort of alternative to buy some extra time. 4. Nosy neighbors asking you how you are authorized to possess the property. Here we usually tell anyone that asks that we mailed the owner and as a result of the mail communication we are now authorized to be in the property, or that you consulted with an real estate firm that got you into the house. You may have them contact us at any time. 5. Repairs are yours to fix. Per the legislation, as the Adverse Possessor, you are required to maintain the current integrity of the property. Should any repair be needed, you will need Adverse Possessor s Initials 3

4 to either fix the problem yourself (or via a contractor) at your own expense. Even if you are not the procuring cause of the repair, you are required repair it, (i.e. you discover a plumbing leak under the sink or in the wall upon move-in, you are responsible for repairing this). Since you are essentially applying for ownership via Adverse Possession, don t expect the owner to repair anything. 6. Repair any and all Damages. You may not deteriorate the property (i.e. allowing a pet to ruin carpet, chew on door, host a crazy party and have an intoxicated guest throw the bathroom sink through the bathroom window). Should this happen you are required to replace the damage components with the same or greater quality. 7. You may need to pay any and all real property taxes and applicable Home Owners Association Fees/Dues as they come due. It will be your responsibility to contact the county s Treasurer to process the tax payment and the Home Owner Association to pay any and all dues. 8. The subject property might have existing delinquent/unpaid utility bills which might need to be paid before utilities are activated. Delinquent/unpaid utility bills can be in the thousands of dollars, but usually only a couple of hundred of dollars. This is usually the case with water and sanitation districts (i.e. Widefield Water and Sanitation District, Security Water and Sanitation Distract, etc.) but usually not the case with city affiliated or private utility providers (i.e. Colorado Springs Utilities, Black Hills Electric, etc.) 9. You are required to improve the property per the law. In addition to maintaining the integrity of property and making any and all repairs, you will need to improve the property. The law requires this so if the owner return and want to kick you out, the house is in better condition than they left it and acts some recourse for having to evict you. The term improve is not well defined and most Adverse Possessors simply water and care for the existing dead or depilated lawn to meet this improve the property requirement. However you can do whatever a reasonable person will consider an improvement. Some people have replaced carpet, installed hardwood floor, new tile, etc. 10. Advised to get renters insurance. Since there is likely no real property insurance on the house, we advise that you at least obtain some level of renters insurance. Should the property sustain damage, you want to have your assets protected. How Do We Get Started? Contact Ethan Eaton of Colorado Home Ventures. The property will already have a key for access, you ll need to call and get the utilities activated, sign, notarize an Affidavit of Adverse Possession and file a consultation agreement with Colorado Home Ventures. Once all this is complete, you ll need to start paying any and all ad valorem real property taxes, any applicable Home Owners Association (HOA) Fees. Adverse Possessor s Initials 4

5 X Signature of Adverse Possessor (MATTHEW CLARK) Date X Signature of Consultant (ETHAN EATON by and for COLORADO HOME VENTURES, LLC) Date Adverse Possessor s Initials 5