You will often hear brokers state if a fence has been in place for 18 years then that is where the property boundary is. This is a very oversimplified statement and really should not be stated as fact by a broker.
Brokers say this because of Colorado’s adverse possession law and one of the elements of an adverse possession claim is the adverse possession must be continuous for at least 18 years. However, that is only one element of an adverse possession claim and a claimant must prove all elements, and the passage of House Bill 08-1148 (Act) in 2008 has made this even more complex.
Simply because a fence has been in place for 18 years does not make certain that an adverse possession claim will be successful and the party making the claim must actually make a legal claim which the courts will decide if the claimant satisfies all the common law elements of adverse possession. The owner of record has the ability to dispute the adverse possession claim which can lead to long-drawn-out legal battles and become costly to both parties. Therefore the property owners may end up coming to an agreement without a legal battle.
One of the most interesting changes the 2008 Act made was after July 1, 2008 courts are provided the discretion to order monetary awards to the party losing title. They can award monetary damages in the amount of the actual market value plus taxes and assessments levied over past 18 years up to the time the final settlement is awarded. The result is this could become very expensive for the adverse possession claimant. This will likely encourage owners to come to terms before going to court. It can also result in record title owners who have lost title to file quiet title claims by which they will either receive title back because the adverse possessor will not dispute the quiet title claim or if they dispute the quiet title claim the record owner may be awarded market value plus taxes and assessment levied over the prior 18 years up to time of settlement.
Brokers tend to make very simplified statements on fences and property boundaries and as one can see that is simply not the case. All the elements of adverse possession have not even been covered in this article and those elements in themselves can each be very complex depending upon all the facts of the claim.
If you are purchasing a property that has property boundary issues that concern you always seek legal counsel and do not simply assume that fences are where the fences are in perpetuity.
Always consult with your tax and legal professionals and do not wait until the day of closing or worse the day after closing.
**disclaimer – This is not to be considered legal advice and is for informational purposes only. Always consult tax and /or legal professionals for real estate legal and financial matters.