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Law Offices of Ronald W. Rutz
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November 28, 2000: Adverse Possession; 12th Amendment & the Election

Q: I am in my early 90's and in a nursing home. Would you please warn people, especially seniors, about adverse possession? I may have lost part of the backyard of my rental, which is one of my few sources of income.

A: In law school the real estate professors described adverse possession as "legalized stealing" but they rationalized its continued existence as the most efficient way for society to be sure that such a valuable asset as land is used and not wasted. But there is generally no equivalent concept for personal property (despite the old rubric that possession is nine-tenths of the law). Criminal law takes over.

In Colorado if one possesses real property for eighteen years (or seven years if that person also pays taxes on it and has some claim to title – which is usually not too difficult to fabricate), the adverse possessor has superior rights against the "record" owner.

Now "possession" must be open, continuous, hostile, and all encompassing during the required period for the right to be acquired. And that right might be for 100% ownership or for something less such as the right to mine or to graze animals or even the right to cross property (the latter two are probably better labeled as prescriptive easements).

As an aside, there is no adverse possession permitted for government owned property and for water.

But after this long-winded background soliloquy (and if there are any readers left at this point in the column), you are specifically interested in how the rules of the game are applied in town. If your neighbor puts up a fence, for example, and it intrudes on your property, you must take action and at the very least get something down on paper and signed by your neighbor concerning the location of the fence.

Your neighbor might go to your church (even be a deacon) and be friendly enough, but after the time period runs, he or she holds all the legal cards. And even if you had wanted to be a "nice guy" and orally gave permission, it is just your word against your neighbor's word about the location of the fence and the true intent. The physical existence of the fence for the required time period usually stands as an insurmountable barrier.

When I taught this stuff I was always asked about examples of something that was legally right but morally or ethically wrong. Maybe this is a case in point, especially if the owner is in poor health and has been immobile for years with one or two rentals as his or her only source of income. It is one thing to say that this loss was the owner's fault for not watching the property. It is quite another for someone to purposefully exploit a situation or victimize another's physical problems, ignorance, or overall good nature. But it is legal.

Q: Why can I not get anyone to listen to me? The Twelfth Amendment clearly states "The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves…" So Texas members of the electoral college can not vote for the Bush-Cheney Team!! Gore wins the election regardless of what happened in Florida.

A: It has been a while since I taught any Constitutional law, so I called several people in each party to be sure I remembered this point correctly.

You assume inhabitant means a physical residence, while the term generally has been interpreted to mean a legal inhabitant, at least as far as this Amendment is concerned. Cheney, among other things, by reregistering to vote in Casper, Wyoming, has satisfied officials in each party to whom I spoke that the terms of the 12th Amendment have been met, although he continues to live in Texas. It is not unusual for the legal residence and the physical residence to differ.

One of the chief purposes of a Court is to construe terminology in light of its context. Was the intent to keep two people living in the same state from dominating the Presidential election or was it to insure that each person had separate legal roots? In this matter, whether the Courts or tradition got it right is beside the point. That is what the word "inhabitant" is deemed to mean, even if it is defined differently in the dictionary.

In a different setting, the word "inhabitant" could be found to mean physical residence but here it is necessary for you and me to explore beyond what was written and learn (from the Court whose job it is to tell us) what was really meant. Some call this legislation by the Courts. Others call it cleaning up the legislative messes when the legislators did not say what they meant or did not take all factors into consideration.

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