April 19, 2019

Colorado Court of Appeals: Putative Adverse Possessor’s Property Rights are Superior to Everyone Else’s Except Actual Owner

The Colorado Court of Appeals issued its opinion in Lensky v. DiDomenico on Thursday, June 16, 2016.

Adverse Possession—Quiet Title—Putative Adverse Possessor.

In 1998, Lensky purchased a one-acre parcel of property from the Valdezes. Title insurance could not be provided because all of the structures and improvements that Lensky had purchased from the Valdezes were “off the deed” and actually located on adjacent land rather than on the deeded property. In 2001, Lensky filed a quiet title action, claiming fee simple ownership to the approximately 23 acres adjacent to the property he had purchased from the Valdezes by adverse possession. Litigation continued for a number of years. The trial court ultimately found in favor of defendants and ordered Lensky to remove certain structures that restricted access to the subject property. It further ordered Lensky and his associates to refrain from confronting defendants as they entered or left the subject property.

On appeal, Lensky contended that the trial court erred in finding that he had no rights as a putative adverse possessor. He argued that the Court of Appeals’ prior decision affirming his lack of legal title to the subject property fully adjudicated his prior claim to the property as an adverse possessor, but that it had no prospective effect. He also argued that his continued possession of the subject property as a putative adverse possessor gives him an interest in the property (including the right to restrict access to it) that is superior to everyone else’s interest except that of the rightful owner. The Court agreed, determining that neither the trial court’s prior order nor the division’s decision upholding that order addressed the parties’ possessory rights or Lensky’s ongoing right to possess the property, and neither prohibited him from continuing to attempt to adversely possess the property.

The trial court’s order prohibiting Lensky from excluding defendants from the subject property was reversed.

Summary provided courtesy of The Colorado Lawyer.

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