Colorado couple use a rarely invoked law to take part of a neighbor's lot. The
squatters' rights case sparks outrage.
By DeeDee Correll, Los Angeles Times Staff Writer December 3,
BOULDER, COLO. -- For more than 20 years, a
retired judge and his lawyer wife trespassed on a vacant lot next door to their
They planted a garden there and stacked their firewood. They say
they held parties there and walked the land so often they wore a path in the
Last year, 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.
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 become a cause celebre,
sparking 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 the
residents of this university town fuming.
"This scares the hell out of
landowners," said Don Kirlin, the man whose property was taken away. He said he
and his wife first took it as a joke when he heard of the former judge's designs
on their land.
In 1984, Kirlin, a commercial airline pilot, and his wife,
Susie, 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
someday build their dream house on their vacant land, which abuts city-owned
open space, a rolling expanse of ponderosa pine and native grasses.
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 Eduardo Peñalver, a law professor at Cornell
"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
The law is based on a philosophy that land should be used, Denver
real estate lawyer Willis V. Carpenter said. "If you don't use it and someone
else does, they'll end up owning it," he said.
Every state in the country
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.
California, people who want to claim someone else's land must not only use it
for at least five years, they also must pay property taxes on it. That's also
the case in a handful of other states.
One reason for that requirement is
to alert the owner that someone is using the property. "Most courts are not
disposed to easily give land away," said Spencer W. Weisbroth, a San Francisco
Because of that requirement, he said virtually all California
The majority of cases involve minor boundary encroachments in
which neighbors aren't sure where the borders of their land are, Peñalver said.
Most are resolved without litigation; the owner issues a warning and the
encroaching neighbor withdraws. "It's a rare case that gets
It's an even rarer case that makes the news.
happened this year in New York, when a land dispute prompted the state
Legislature to pass a law preventing someone who knowingly occupies someone
else's land from acquiring it. The governor later vetoed the law, saying efforts
to prove the person's state of mind would lead to more litigation.
states don't make a distinction between people who unknowingly occupy another
person's land and those who do it deliberately, Peñalver said. But many people
are more understanding when someone unknowingly uses someone else's land, he
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 McLean served from 1981 to 1997 --
ruled 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," Klein wrote in his opinion.
The judge granted McLean and
Stevens one-third of the lot next to them. That decision rendered it too small
to sell or to build a home on, Kirlin said.
The Kirlins and McLean and
Stevens each say that they made efforts to settle the matter -- but that the
other party would not accept the offers.
In addition to the specifics of
the dispute, the Kirlins take issue with the application of adverse possession
law itself, saying it has its place but wasn't intended for cases such as
Many in the community seem to agree. When the news hit, residents
reacted in an Internet-fueled fury. Bloggers ridiculed McLean and Stevens as
land-grabbers who used their knowledge of the law to steal from an unsuspecting
Last month, more than 200 people flocked to the property, where
they hoisted signs with slogans such as "Thou shall not steal" and shouted
"shame" and "thief" at the McLean/Stevens home, the Denver Rocky Mountain News
State Sen. Ron Tupa, a Democrat from Boulder, said he had
received a flood of e-mails about the case; he and Rep. Rob Witwer, a Republican
from Evergreen, intend to propose a change to the law, although they haven't
settled on the specifics.
"If the law allows this kind of taking, then it
needs to be changed," Tupa said.
A change in state law wouldn't affect
the Boulder case, which the Kirlins say they intend to appeal. Regardless of the
outcome, they say they still want to build a home on the second lot that was not
affected by the decision, where Susie Kirlin recently stapled a sign to the
Facing the home of McLean and Stevens, it reads, "You will never
enjoy a stolen view."