Woodbridge II and the Nuanced Meaning of “Adverse Use” in Hostile Property Rights Cases in Colorado
Earlier this year, the Colorado Court of Appeals issued an opinion addressing at length “whether the requirement that the use be ‘adverse’ in the adverse possession context is coextensive with adverse use in the prescriptive easement context.” See Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2, cert. granted, No. 20SC292, 2020 WL 5405376 (Colo. Sept. 8, 2020). As detailed below, the Woodbridge II court concluded that the meanings of “adverse” in these two contexts are not coextensive—while “hostility” in the adverse possession context requires a claim of exclusive ownership of the property, a party claiming a prescriptive easement is only required to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Thus, the Woodbridge II court reasoned a claimants’ acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context.
This significant ruling is at odds with a prior division’s broad statement, while considering a prescriptive easement claim, that “[i]n general, when an adverse occupier acknowledges or recognizes the title of the owner during the occupant’s claimed prescriptive period, the occupant interrupts the prescriptive use.” See Trask v. Nozisko, 134 P.3d 544, 553 (Colo. App. 2006). Perhaps for that reason, Woodbridge II is currently pending certiorari review before the Colorado Supreme Court in a case that should provide some much-needed clarity on what constitutes “adverse use” in the context of a prescriptive easement. As we await the Colorado Supreme Court’s decision, I thought it worthwhile to provide a brief analysis of the Woodbridge II court’s deep dive into the nuances of “adverse use” in this field of Colorado law.
As is frequently the case in these matters, Woodbridge II had a complicated factual and procedural history, which is essential to understanding the finer legal points at issue. Woodbridge (a condominium association) and its members and guests had used its neighbor’s property from 1975 through at least 2012 for various purposes, including access and egress to a nearby ski area. Id. at ¶ 5. However, in 1992, Woodbridge sent a letter to its neighbor offering to buy the disputed parcel. Id. at ¶ 7. Woodbridge also sent a couple letters to the neighbor in 1991 seeking permission to plant trees and shrubs on the disputed parcel. Id. at ¶ 8. These requests and offers were rejected or ignored, but Woodbridge continued to use the property as if it owned it. Id. at ¶ 9. Meanwhile, the record owner never used the disputed property for any purpose until the property was purchased for development by Lo Viento in 2011. Id. at ¶¶ 9-10.
In an apparent effort to block Lo Viento’s proposed development, Woodbridge filed suit in 2012 seeking adverse possession of, or a prescriptive easement over, the disputed parcel. Id. at ¶ 11. The original trial court granted adverse possession, but an earlier appellate court opinion reversed this grant because Woodridge’s 1992 offer to purchase the property interrupted the continuity of its adverse possession claim before the statutory 18-year vesting period had passed. Id. at ¶ 13 (discussing Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC, 2016 WL 2958766 (Colo. App. No. 15CA0596, May 19, 2016) (not published pursuant to C.A.R. 35(f)) (Woodbridge I)). The Woodbridge I court reasoned that this offer essentially admitted that Woodbridge “did not claim superior title or have any right to or ownership of the disputed parcel,” and since “hostility requires the adverse possessor to claim exclusive ownership of the property,” the claim failed based on Woodbridge’s offer to buy the property during the statutory vesting period. Id. Further, since less than 18 years passed between 1993 and July 1, 2008, the letter seeking to purchase the property also defeated any claimed adverse possession for the period from 1993 to 2012. Id. at ¶ 13 & n.5 (explaining that under the 2008 amendments to the adverse possession statute, any claimant whose claim would vest after July 1, 2008 must “show that it had a good faith belief that it actually owned the property that was reasonable under the circumstances”). On that basis, Woodbridge I reversed the order quieting title in Woodbridge and remanded the matter to the trial court to consider Woodbridge’s easement claims. Id. The (new) trial court then ruled in Woodbridge’s favor on remand on its prescriptive easement claims, and Lo Viento appealed that ruling. Id. at ¶ 14.
2. The Woodbridge II Opinion
On appeal, Lo Viento argued that the second trial court erred by finding a prescriptive easement. Id. at ¶¶ 2, 15. Specifically, Lo Viento argued (among other points not addressed here) that the Woodbridge I holding that the 1992 letter defeated Woodbridge’s adverse possession claim was the law of the case and applied equally to its prescriptive easement claim. Woodbridge II rejected this argument through a detailed and thorough comparison of the “adverse use” requirement for adverse possession with the “adverse use” requirement for prescriptive easements, ultimately concluding “that while those requirements overlap, that overlap isn’t complete.” Id. at ¶ 2, 16-34.
There’s a lot to unpack in this opinion, and depending on how the Colorado Supreme Court treats Woodbridge II on certiorari review, it may well become a staple case in litigation over prescriptive rights. Given our limited space, however, this post focuses on the broadest and most significant portion of the court’s ruling: “[W]hile claim to exclusive ownership during the prescriptive period is required to show hostile adverse use when a party seeks to acquire title by adverse possession, it isn’t required when a party seeks to acquire a prescriptive easement by adverse use. Rather, adverse use in the prescriptive easement context requires only a showing of use made without consent or other authorization of the landowner, such as would justify a tort action for interference with property rights.” Id. at ¶ 2. Hence, Woodbridge II concluded that “a user’s recognition of the landowner’s title doesn’t necessarily defeat a claim for a prescriptive easement based on adverse use.” Id.
This ruling recognizes a fundamental distinction between the “exclusive ownership” requirement to establish hostility in the adverse possession context and the lack of such a requirement to obtain a prescriptive easement. Thus, as long as a claimant “show[s] a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests,” that use is sufficient to satisfy the “adverse use” requirement for prescriptive easements. Id. at ¶ 20-21. Although “Woodbridge recognized that it didn’t hold title” to the property, it did not “act in subordination to the owner’s title,” meaning that the offer to buy did not destroy “adverse use” in the prescriptive easement context. Id. at ¶ 30. In layman’s terms, Woodbridge II recognizes that one can establish a right to use a property without making any claim of ownership, let alone exclusive ownership.
3. The Colorado Supreme Court’s Grant of Certiorari
The Colorado Supreme Court granted certiorari in Woodrock II on the question of “[w]hether, under Colorado Law, an adverse occupier’s acknowledgement or recognition of the owner’s title during the occupant’s claimed prescriptive period interrupts the prescriptive use and defeats the presumption that any use was adverse.” No. 20SC292, 2020 WL 5405376 (Colo. Sept. 8, 2020). This grant is fairly broad as phrased, but based on Woodrock II and its rejection of the court’s broad language Trask v. Nozisko, it seems likely the court’s focus on certiorari will be whether a prescriptive easement claimant can maintain a use that is “adverse” while still recognizing that another party owns the land that the claimant is using. The Colorado Supreme Court’s answer to this question should provide some needed clarity concerning this point and on the nuances between “adverse use” for adverse possession and “adverse use” for prescriptive easements.