Adverse Possession Law Shift Will Prevent Abuse

Winning to lose Adverse possession law shift will prevent abuse

By Clay Evans Tuesday, February 19, 2008

All the sound and fury, most of it truly signifying nothing, in the wake of a notorious case of "adverse possession" in south Boulder signifies nothing, or at least nothing much.

But thankfully, substantive changes to grossly inadequate state law governing adverse possession -- under which trespassers may be granted ownership of land after certain conditions are met -- is edging closer to Gov. Bill Ritter's desk.

The issue arose late last year after Camera columnist Bob Greenlee revealed that Boulder County District Court Judge James C. Klein had awarded former judge Richard McLean and his wife, attorney Edith Stevens, 34 percent of a lot on Hardscrabble Drive belonging to Don and Susie Kirlin. McLean and Stevens successfully demonstrated in court that they had used the land continually for at least 18 years.

While it's likely that virtually none of those who have rendered a public opinion on the case (almost all in support of the Kirlins) attended the court proceedings at which the decision was reached, the ruling -- legal though it may be -- understandably offends almost everyone who hears of it. The Kirlins now have asked Klein to review newly submitted photographs they say call into question assertions made by McLean and Stevens in court. The Kirlins also may press their case in higher courts.

Those legal proceedings will be decided, we trust, by competent judges based on existing law and evidence presented -- exactly as we believe Klein made his decision.

In the meantime, we wholeheartedly applaud the bipartisan bill approved by the House Monday and sent to the Senate for its consideration. The bill, by Republican state Rep. Rob Witwer and Boulder Democrat Sen. Ron Tupa, would require that "adverse possessors" have made a good- faith mistake, rather than deliberately trespassing, raise the burden of proof and allow judges to make adverse possessors pay for any land they are awarded.

Those are much-needed changes. Adverse possession may have a long legal history, but to the vast majority of observers today, the idea that you can take someone's land if you trespass for long enough is offensive, unfair and hardly conducive to neighborliness.

McLean and Stevens had wisely refrained from significant comment on the case in the face of overwhelming public opposition until last week, when they declared themselves "outraged" by the Kirlins' new photographic evidence. Boulder's best-known adverse possessors would have been better advised to maintain their silence. The validity of the Kirlins' new evidence remains to be evaluated. But legal experts suggest that it will be difficult to overturn Klein's initial ruling, and of course any new law won't affect the case.

In other words, McLean and Stevens may be allowed to keep the disputed land; whether they should is another question. What's legal and what's right, after all, aren't always the same thing, and sadly in this case, the couple stands to lose more by "winning" than letting go.

Clay Evans, guest editor for the Camera editorial board