PRESUMPTIONS IN ADVERSE POSSESSION AND PRESCRIPTIVE EASEMENT CASES

PRESUMPTIONS IN ADVERSE POSSESSION AND PRESCRIPTIVE EASEMENT CASES

By James Knowlton[i]

The 2008 amendment to Colorado’s adverse possession statute[ii] and the recent Colorado Supreme Court decision in Lo Viento Blanco, LLC v. Woodbridge Condominium Association, Inc.[iii] challenge longstanding assumptions about presumptions in adverse possession and prescriptive easement cases.  In this article we will explore the far reaching implications of these developments and examine the competing policies that are driving the evolution of the law in this area.      

PRESUMPTIONS GENERALLY

Presumptions are not evidence.  Presumptions are evidentiary rules of convenience based upon experience or public policy to help decide cases.[iv] Legislatures and courts create presumptions when certain fact patterns assist in uncovering the truth.[v]  Some examples include: the husband in a marriage is presumed to be the father of the child of the marriage; a stamped letter placed in the mail is presumed to be delivered to the person to which it is addressed; a person is presumed dead after being absent for 7 years; and the record title owner of real property is deemed to be the owner of the land to which she has title. In each instance, the result seems obvious unless facts are introduced to show the presumption is not true.

A presumption imposes the burden of going forward with evidence but does not shift the burden of proof.[vi]  Burden of proof is the degree of certainty needed to convince a jury or judge to decide a question in your favor based on the facts presented. In most civil cases the burden of proof is by a preponderance of evidence.[vii] The 2008 amendment to Colorado’s adverse possession statute increased the burden of proof for adverse possession claims to clear and convincing evidence. The burden of proof for prescriptive easement claims remains by a preponderance of evidence.[viii]

Presumptions are rebuttable.[ix] Once a presumed fact is introduced by its proponent the opposing party has the burden of presenting evidence to disprove the presumed fact.  If the presumed fact is disproved, the presumption disappears but if not disproved, the presumed fact is confirmed as a matter of law.[x]  The weight or strength of the evidence introduced to rebut a presumption is a question for the trial court, not a question of fact for the jury.[xi] And must be measured on a case-by-case basis.[xii]  

Because a rebuttable presumption does not shift the burden of proof, the challenging party is not required to persuade the jury of her position, only required to offer evidence “legally sufficient” to meet the burden of going forward.[xiii] If met, the presumed fact remains in dispute and the burden of proving the facts supporting the underlying the claim returns to the proponent.[xiv]  

In Krueger v. Ary, the Colorado Supreme Court explained “legally sufficient” in the context of the presumption of “undue influence and unfairness” of a caretaker who becomes a beneficiary in a will of the person she was caring for. The Court found that the estate successfully rebutted the presumption of “undue influence and unfairness” of the caretaker by producing a letter from the deceased to the caretaker with a check for $5,000, which was to be used if the conveyance to the caretaker was contested by the deceased’s daughters.[xv]  As a result, the presumption disappeared but a permissible inference of the presumed fact remained.[xvi]

PRESUMPTIONS OF ADVERSITY IN PROPERTY LAW

Adversity is a common element for both adverse possession and prescriptive easement claims[xvii] and means without permission or authority.[xviii] In order to give permission - or not - the landowner needs to have notice of the particular possession or use taking place.[xix] Notice for adverse possession is determined by actual and exclusive possession "sufficiently open and obvious to apprise the true owner, in the exercise of reasonable diligence, of an intention to claim adversely”[xx] and for prescriptive easements is determined by the “open and notorious” element defined as a use “sufficiently obvious to apprise the owner of the servient estate, in the exercise of reasonable diligence, that another is making use of the burdened land so that the owner may object."[xxi]  Actual knowledge by the owner is not necessary if the use is open,[xxii] it is implied.

Presumptions of adversity for adverse possession[xxiii] and prescriptive easement[xxiv] claims are also similar. The presumption helps resolve cases when there is little direct evidence of  parties intention on how they possess or use land.[xxv] After 18 years, parties may not be available or their memories may have waned and documentary evidence may be scarce.  Possession provides the best circumstantial evidence whether the possession or use is adverse or permissive.[xxvi] Presumptions, based on length and nature of possession or use, allow fact finders to resolve property disputes and clean up real property titles for transfer.[xxvii]

With the introduction of the presumption of adversity in Trueblood v. Pierce,[xxviii] a prescriptive easement case, and Vade v. Sickler,[xxix] an adverse possession case, Colorado courts shifted to the length and nature of possession and use of property to determine whether the possession or use was sufficient to alert the landowner to take steps to protect their property rights.  This focus on notice and fairness to the landowner is important when loss of property rights is threatened.[xxx] 

Prior to this shift in the late 1940s, possession, alone, could not extinguish property rights because possession or use of real property was presumed permissive.[xxxi]  The first case to interpret Colorado’s 1893 adverse possession statute, Evans v. Welch,[xxxii] captures the importance of this early policy of sanctity of title with a ruling requiring Ms. Evans to move her home, which had encroached on a neighbor’s lot by a few feet for 17 years - one year short of the 18 years needed to succeed on an adverse possession claim.   

Colorado history helps explain this shift away from possession being presumed permissive toward the presumption that possession is adverse if continued unexplained for 18 years.  

The Colorado legislature passed the original adverse possession statute limiting claims for adverse possession until 20 years had passed in 1893.[xxxiii] Prior to 1893, there was little need for presumptions[xxxiv] because Colorado, as a newly admitted state (as of August 1, 1876), was encouraging possession of land to settle the frontier. Beginning with the 1893 Act and its interpretation by Evans, the legislature and courts worked toward the same goal of securing title to property.[xxxv] Beginning in 1947, Colorado courts, faced with boundary, access and water rights issues, turned to presumptions of adversity to help resolve these property disputes.

The results have been confusing.[xxxvi] The Colorado Supreme Court in Lobato v. Taylor tackled the confusion when it adopted a way to obtain a prescriptive easement without proving adversity.[xxxvii] In explaining the need for a new theory to resolve cases involving common drives, boundary and party wall disputes the Court noted the 'convoluted explanations' used by courts to explain how a permitted use was actually hostile to meet the adversity requirement or in some Colorado cases where courts "simply glossed over the adversity requirement without comment."[xxxviii]

Colorado courts have also identified certain fact situations which overcome the presumption of adversity creating a counter presumption that the initial use is permissive.[xxxix]  When parties share a driveway,[xl] or when the others use a passageway constructed by the landowner[xli] or when the land involved is “vacant, unenclosed, and unoccupied”[xlii] there is a presumption that the possession is permissive and continues permissive unless and until notice or explicit disclaimer of subservience is given to the owner by the claimant.[xliii]  

Underlying public policy and political forces add to the confusion.  

DUALING  POLICIES  

Beginning with the 1893 Act,  the legislature balanced two policies - one protecting property ownership[xliv] and the other acknowledging productive use of land.[xlv] The legislature applied a statute of limitations approach to protect property ownership by giving the landowner 18 years to protect their ownership and rewarded the adverse claimant for making productive use of the property if the owner did not object during the same time period.[xlvi] 

With the shift by Trueblood and Vade, the policy favoring the sanctity of title established in Evans with its presumption of permissiveness was now contending with a new public policy favoring productive use of land with the presumption of adversity.[xlvii]

Recent Colorado Supreme court cases dealing with prescriptive easements give context to these two polices:  one giving effect to the idea that long-continued possession and uses create expectations of entitlement;[xlviii] and the other honoring private property rights with predictable and clears laws.[xlix]       

The Court in Lobato deployed the equitable tools of implied rights (prescriptive easement, easement by estoppel and easement by necessity) to validate grazing and foraging rights created in 1863 on Taylor Ranch located near the Sangre de Cristo mountains in southern Colorado.[l] The Court invoked Colorado’s strong policy of recognizing its unique history and geography to justify judicial recognition of these implied rights over a mountainous region on this 77,000 acre tract of land.[li] The reference to history and geography calls to mind the settlement of Colorado, mentioned above, when protecting possession with legal title was necessary for settling Colorado’s frontier. But different from Evans, the equitable appeal of long term possession and use prevailed over the protection of recorded title by statute and common law.[lii]  

In Matoush v. Lovingood, [liii] the Court supported the record title owner of an express easement over an adverse possession claim by the servient landowner.[liv]  The Court determined something more was necessary to show adversity than the "incompatible or irreconcilable" use significant enough to give notice that the easement was under threat because it was difficult to know what use is adverse to an easement holder’s rights.[lv] The Court held that an adverse possession claim for an express easement does not begin until “the easement holder needs to use the easement, demands to use it, and is denied the right to use it.”[lvi] In effect, the Court required actual notice to divest a recorded property right.  Diverging from Lobato, the Court supported recorded property rights over possession and the law over equity.

Aside from courts juggling equitable and legal principles and competing policies for over 100 years in applying the 1893 adverse possession statute, political pressure to change the statute is a reminder that the legislature is the final arbiter of Colorado law.   

“As the [U.S.] Supreme Court has noted, "it is indisputable that the general welfare of society is involved in the security of the titles to real estate and in the public registry of such titles, it is obvious that the power to legislate as to such subjects inheres in the very nature of government."[lvii]

LEGISLATIVE INVOLVEMENT

The 2008 amendment to the adverse possession statute fixes the presumption of adversity in adverse possession cases to prioritize the sanctity of title and protect property rights. 

The Legislature made it more difficult to succeed on an adverse possession claim by raising the standard of proof for all elements of adverse possession from “preponderance of the evidence” to “clear and convincing” evidence, added a good faith requirement and gave judges discretion to award damages to the landowner for the loss of property.[lviii]

The amendment was in response to a large public outcry at the perceived abuse of adverse possession law that would allow a past mayor and retired judge and his attorney wife in Boulder, Colorado to claim title to a portion of a neighbor’s lot based on their use of a path, tending a garden and building a rock wall for more than 18 years.[lix] The case settled with a smaller easement that would allow the neighbors to sell their property.[lx]

The requirement that all elements of adverse possession be proven by clear and convincing evidence and made in good faith raises the question of whether possession can give rise to a presumption of adversity with its shifting burden requiring the landowner to come forward with evidence to rebut the presumption.[lxi] In theory, the presumption of adversity, which is not evidence but a way of dealing with evidence,[lxii] no longer applies. As a result, sanctity of title regained its stature with the return of the presumption of permissiveness to protect ownership.[lxiii]  

Ostensibly, the Legislature fulfilled its role of watching over the general welfare of Colorado by weakening, if not undoing, the codification of the presumption of adversity in the adverse possession statute to secure title to property.[lxiv]  

COMMON LAW PRESCRIPTIVE EASEMENTS

The Colorado Supreme Court took a different approach with prescriptive easements.  Lo Viento Blanco strengthened the presumption of adversity by making it more difficult for landowners to challenge the use of property giving rise to the presumption.  

In Lo Viento Blanco, the adverse claimant, Woodbridge, offered to buy the owner’s property after asking for permission and receiving permission, albeit with conditions, to landscape the property before the 18-year prescriptive period had lapsed.  The Court found this evidence did not rebut the presumption of adversity and declined to overturn a lower court’s decision granting an exclusive prescriptive easement over the majority of the undeveloped property for visual appearance, skiing and maintenance of property bordering a condominium complex.[lxv] 

The Court decided that Woodbridge’s letter asking for the owner’s permission to landscape the property did not interrupt the presumption of adversity[lxvi] because the owner responded by giving its permission with conditions which Woodbridge did not accept.[lxvii]  

On its face an adverse claimant asking a landowner for permission to landscape the landowner’s property is not notice to the landowner of an adverse use and as a result fails to meet the “open and notorious” element for prescriptive easements.[lxviii]  A claimant asking permission to landscape the same property that they are maintaining does not create a cause of action for “trespass, nuisance or interference” as the Restatement (Third) of Properties (Servitudes)(2000) defines adversity.[lxix] Ownership of the property is acknowledged or recognized when a claimant asks the owner for permission to use their property.[lxx]   

The general concept that acknowledging or recognizing the title of the owner during the prescriptive period interrupts a presumption of adversity originated with the Colorado Supreme Court in Segelke v. Atkins, [lxxi] an adverse possession case. Pagel v. Reyman [lxxii] and Trask v Nozisko[lxxiii] applied this concept to prescriptive easement cases.

In Pagel, an agreement to move mobile homes over the owner’s property represented an acknowledgment of owner’s title because the owner could withdraw his permission to use the right of way and precluded a prescriptive easement.[lxxiv] In Trask, a prescriptive easement for parking was granted because the adverse claimant told the owner that she did not believe he owned the property.[lxxv]  Since the adverse claimant did not acknowledge or recognize the owner’s title, her use was not permissive but adverse and supported a prescriptive easement. In both cases, acknowledging or recognizing title in the owner addressed the issue whether the adverse claimant’s use of the property was permissive or adverse.

The Lo Viento Blanco Court followed a different line of reasoning: acknowledging or recognizing title in the owner applies to the “hostile” element (claim to exclusive ownership) of adverse possession and not to whether a use is permissive or adverse[lxxvi] for prescriptive easements.  By making the istinction that recognizing or acknowledging title only applies to adverse possession cases and not prescriptive easement cases, the Court determined that asking an owner for permission to use property or offering to buy property does not rebut a presumption of adversity or prove adverse claimant’s use is subordinate[lxxvii] or permissive. In so doing, the Court overruled Trask with the comment that the lower court “did not appear to recognize the above-described distinction.”[lxxviii]     

It is not clear why asking for permission to use or offering to buy the owner’s property would not also be evidence to prove a use was permissive or in subordination of the landowner.  The Colorado Supreme Court in Smith v Hayden[lxxix] used the same evidence to determine both the “hostile” and “adverse” elements for adverse possession.  At the very least, one would assume that the letters exchanged by the owner and Woodbridge are actual evidence that would be legally sufficient to rebut a presumption of adversity implied by possession during the prescriptive period. 

As certiorari was granted on whether acknowledging or recognizing landowner’s title by an adverse claimant during the prescriptive period defeats the presumption of adversity and the Court decided it did not, the Court’s additional decision to require an actual agreement to prove permissiveness and rebut the presumption of adversity reaffirms the importance of possession and the presumption of adversity in Colorado prescriptive easement cases going forward.  

Prior to Lo Viento Blanco, Colorado law did not require an “actual agreement” to show permissiveness.[lxxx] A landowner could interrupt an adverse possession claim[lxxxi] or prescriptive easement claim[lxxxii] by giving permission. Acceptance of landowner’s permission was not necessary to rebut a presumption of adversity.

“When a landowner gives another person permission to use a road, whether the other person believes he needs such permission or not is immaterial in determining whether the other's use is permissive when the permission is given. By granting permission, the owner has exercised dominion over the property in a way which necessarily renders the other's use of the road permissive rather than adverse.”[lxxxiii]

After the decision, a landowner’s grant of permission during the prescriptive period does not interrupt a prescriptive easement claim unless it is accepted by the adverse claimant.[lxxxiv]  The decision tacitly adopts, as new law, Restatement (Third) Properties (Servitudes) § 2.17 cmt. j which states: “Nor does the grant of permission to the prescriptive user work an interruption unless the user submits to the title of the landowner by accepting the license offered.”[lxxxv]

Moving forward after Lo Viento Blanco, presumptions of adversity in prescriptive easement cases will be more difficult to overcome.  Adverse claimants can rely on mere possession while landowners will bear the heavier burden of overcoming the presumption of adversity based on such possession. From a policy perspective, Colorado may benefit from judicial support for beneficial use of land but the countervailing effect is the uncertainty and the higher cost of land ownership.[lxxxvi] 

CONCLUSION

The treatment of presumptions in adverse possession and prescriptive easement cases has taken divergent paths in Colorado with the legislature providing more protection for property ownership while the courts prioritize the productive use of property. The 2008 amendment to C.R.S. §38-41-101 et seq. weakened the presumption of adversity in adverse possession cases, while the recent Colorado Supreme Court Decision in Lo Viento Blanco v. Woodbridge Condominium Association allowed an exclusive prescriptive easement over the majority of the undeveloped property, potentially expanding the boundaries of prescriptive easements into territory formerly claimed by adverse possession.

This conflicting approach can be partly explained by the different interests at state – the whole bundle of property rights versus just a few sticks – and the desire to simplify an otherwise complex area of the law. The legislature has clarified the evidence required to succeed on an adverse possession or prescriptive easement claim, while the courts have narrowed the evidence needed to rebut a presumption of adversity, giving more weight to possession and the implication of an unexplained use.

As society’s values and needs evolve, it is likely that the direction of Colorado’s prescriptive rights will continue to change in response. The legislature will continue to make policy decisions but not with the agility the judiciary has demonstrated in its ability to adapt to the needs of a modern, congested and sophisticated society.  Property law practitioners will be better able to serve their clients with the understanding that it is important to be proactive in protecting property rights and to combine prescriptive easement claims with adverse ones in the event of litigation.   

[i] Author represented Lo Viento Blanco LLC in the litigation discussed in this article.

[ii] Colo. Rev. Stat. §38-41-101(3)-(5) (2022 Edition).

[iii] Lo Viento Blanco, LLC v. Woodbridge Condominium. Association, Inc., 489 P.3d 735 (Colo. 2021).

[iv] Rome v. HEI Res., Inc., 411 P.3d 851, 859 (Colo. App. 2014).  

[v] Vititoe v. Rocky Mountain Pavement Maint., Inc., 412 P.3d 767, 783 (Colo. App. 2015).

[vi] CRE 301. ”In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes upon the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.”

[vii] Gerner v. Sullivan, 768 P2d 701, 702 (Colo. 1989) (Colorado Supreme Court reduced the burden of proof in adverse possession cases from “clear and convincing” to “preponderance” in order to comply with a legislative mandate for a “preponderance” burden in civil cases in C.R.S. §13-25-127(1)).

[viii] Colo. Rev. Stat. §38-41-101(4).

[ix] Supra nt. 6.

[x] Krueger v. Ary, 205 P.3d 1150, 1156 (Colo. 2009).

[xi] Id. at 1154.

[xii] Rome, 411 P.3d at 859.

[xiii] Krueger, 205 P.3d at 1154. 

[xiv] Id. at 1156.

[xv] Id. at 1153.

[xvi] Id. at 1156.

[xvii] LR Smith Invs., LLC v. Butler, 378 P.3d 743, 747 (Colo. App. 2014) (citing "Lobato v. Taylor, 71 P.3d 938, 970–71 (Colo.2002) (Kourlis, J., dissenting); see also 2 Cathy Stricklin Krendl, Colorado Practice Series: Methods of Practice § 65:5(3.1) (2014) (“By modern decisions, prescription is recognized as a doctrine analogous to the doctrine of adverse possession.”).  

[xviii] McIntyre v. Board of County Com’rs, 86 P.3d 402, 418 (Colo. 2004) ("'Adverse use' is defined as 'use without license or permission.' Black's Law Dictionary 53 (6th ed.1990)." See also Restatement (Third) of Property (Servitudes) §2.16 cmt. b. (Am. Law Inst. 2000).

[xix] Connell v Clifford, 39 Colo. 121, 125 (1907) (“One cannot waive or acquiesce in a wrong while ignorant that it has been committed.”).

[xx] Smith v. Hayden, 772 P.2d 47, 52 (Colo. 1989).

[xxi] Olson v. Hillside Community Church Sbc, 124 P.3d 874, 880 (Colo. App. 2005).    

[xxii] Id. See also Restatement at § 2.17 cmt. h (“An openly visible and apparent use satisfies the requirement even if the neighbors have no actual knowledge of it.”).

[xxiii] See Smith, 772 P.2d at 52.

[xxiv] LR Smith Investments, 378 P.3d at 747.

[xxv] Restatement at § 2.16 cmt. g.

[xxvi] Restatement at § 2.17 cmt. c (“use for the prescriptive period provides sufficient substitute proof of the parties' intent to create a servitude.”).

[xxvii] Lobato, 71 P.3d at 964-965 (“Our legislature adopted a thorough statutory regime intended to ensure titles to real property are secure and marketable… This court, over the decades, has consistently required conveyances to comply with such laws at the time of the document's creation to give full effect to the goal of security and marketability of real property titles.”).

[xxviii] Trueblood v. Pierce, 179 P.2d 671, 677 (Colo. 1947).

[xxix] Vade v. Sickler, 195 P.2d 390, 391 (Colo. 1948).

[xxx] Restatement at § 4.1 cmt. h.

[xxxi] Cox v. Godec, 108 P.2d 876, 879 (1940) ("There is no presumption arising from mere possession, however long it may continue, that the holding is adverse.").  

[xxxii] Evans v. Welch, 68 P. 776, 778 (Colo. 1902) (“possession of property is in consonance or harmony with the rights of the owner and any entry onto the land was presumed to be with the permission of the landowner”).

[xxxiii] Edelstein v. Carlile, 78 P. 680 (Colo. 1904).

[xxxiv] Latta v. Clifford, 45 F. 108, 109 (C.C.D. Colo. 1891) (“This is a new country, in which presumptions as to title are as yet not much needed.”).

[xxxv] See Supra nt. 27.

[xxxvi] This confusion is not unique to Colorado.  See Lobato, 71 P.3d at 953 n. 11.

[xxxvii] Lobato, 71 P. 3d at 954 ("a use that is made pursuant to the terms of an intended but imperfectly created servitude.).

[xxxviii] Id. citing Restatement at § 2.16 cmt a (“To avoid these convoluted explanations and the errors that follow literal applications of the terms “adverse” and “hostile,” this section adopts a definition of prescriptive uses that straightforwardly recognizes the two types of uses that can lead to prescriptive rights.”). 

[xxxix] Restatement at § 2.16 cmt. g.

[xl] Trueblood 179 P.2d at 678.

[xli] Allen v First Nat. Bank of Arvada, 208 P.2d 935, 940 (1949).

[xlii] Durbin v. Bonanza Corp., 716 P.2d 1124, 1129 (Colo. App. 1986). Simon v. Pettit, 651 P.2d 418 (Colo.App.1982), aff'd, 687 P.2d 1299 (Colo.1984).

[xliii] LR Smith Investments,  378 P.3d at 747 (citing Cox, 108 P.2d at 879).

[xliv] See Supra nt. 27.

[xlv] Cielo Vista Ranch I, LLC v. Alire, 433 P.3d 596, 621 (Colo. App. 2018) (citing at Restatement at § 4.10 cmt. b ("'In resolving conflicts among the parties to servitudes, the public policy favoring socially productive use of land generally leads to striking a balance that maximizes the aggregate utility of the servitude beneficiary and the servient estate.')

[xlvi] Restatement at § 2.17 cmt. b (“Acquisitive-prescription theory is reflected in the view that use for the prescriptive period does more than bar the possessor's right to legal relief. It also creates a property right--a servitude--in the prescriptive user.”).

[xlvii] Restatement at § 2.17 cmt. c.

[xlviii] Restatement at § 2.16 cmt. g.

[xlix] See Supra nt. 27.  

[l] Lobato, 71 P.3d at 953,

[li] Id.  

[lii] Id..

[liii] Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008).

[liv] Id. at 1265.

[lv] Id. at 1270-1271.

[lvi] Id. at 1265.

[lvii] Lobato,71 P.3d at 964 (citing Am. Land Co. v. Zeiss, 219 U.S. 47, 60, 31 S. Ct. 200, 55 L. Ed. 82 (1911) and BFP v. Resolution Trust Corp., 511 U.S. 531, 544, 114 S. Ct. 1757, 128 L.Ed.2d 556 (1994).  

[lviii] CRS § 38-41-101(3).

[lix] McLean and Stevens v. DK Trust and Kirlin, Boulder District Court Case No. 06 CV 982 (filed Oct. 4, 2006).

[lx] https://www.dailycamera.com/2009/08/14/boulders-infamous-land-grab-case-settled.

[lxi] Geoffrey P. Anderson, David M. Pittinos, Adverse Possession After House Bill 1148, , 37 Colo. Law. 73, 77 (November 2008).

[lxii] Fed. R. Civ. P. Rule 301. Notes of Committee on the Judiciary, Senate Report No. 93–1277.

[lxiii] See  William G. Ackerman & Shane T. Johnson, Comment, Outlaws of the Past: A Western Perspective on Prescription and Adverse Possession, 31 Land & Water L. Rev. 79, 94-95 (1996) (taking someone else’s property without paying for it is in “contravention of the ideals set forth in the U. S. Constitution of protecting life, liberty and property.).

[lxiv] C.R.S. § 38-41-101(1) ("Eighteen years' adverse possession of any land shall be conclusive evidence of absolute ownership.").  

[lxv] Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC, 490 P.3d 598, 611 (Colo. App. 2020). 

[lxvi] Lo Viento Blanco, 489 P.3d at 742 (“the mere fact that Woodbridge sought permission (which it did not ultimately receive) to landscape the disputed parcel did not interrupt its adverse (i.e., nonpermissive) use.”)

[lxvii] Id. (“the owner responded it would give permission if Woodbridge would agree to certain conditions (including relinquishing any claim to rights in the easement) and that Woodbridge did not accept those conditions and continued using the property as its own.").

[lxviii] Olson, 124 P.3d at 880.

[lxix] Restatement at § 2.16 cmt. f. 

[lxx] Trask v Nozisko, 134 P. 3d 544, 553 (Colo. App. 2006).

[lxxi] Segelke v. Atkins, 357 P.2d 636, 638 (Colo. 1960) (Parties lease was acknowledgment of title). See also Hunter v Mansell, 240 P.3d 469, 475 (Colo. App. 2010) ( 2006 affidavit of wives describing oral agreement between their deceased husbands in 1976 acknowledging owner’s title to land where neighbor built a shed showed permissive use.).

[lxxii] Pagel v. Reyman, 628 P.2d 166, 168 (Colo.App.1981).

[lxxiii] Trask, 134 P. 3d at 553.

[lxxiv] Pagel, 628 P.2d at 168.

[lxxv] Trask, 134 P. 3d at 553.  

[lxxvi] Lo Viento Blanco, 489 P.3d at 741.

[lxxvii] “Subordination” and “permissive” express the same concept.  “To express the idea that an adverse use cannot be in subordination to the rights of the owner, it is frequently said that the use must be made under claim of right.” Restatement at § 2.16 cmt. f.  McIntyre,  86 P.3d at 417 (Colo. 2004) ("[T]he terms 'use under a claim of right' and 'adverse use' are synonymous." (Martinez, J., dissenting))

[lxxviii] Lo Viento Blanco, 489 P.3d. at 743.

[lxxix] See Smith, 772 P.2d at 55-56 (“Hayden bases this argument on the same conversations and facts she relied on above to argue that the Smiths' use was permissive. That is, Hayden asserts that Smith's conversations with Chace and Hayden amounted to a recognition by the Smiths that they were not the record owners of the property.”).

[lxxx] LR Smith Investments, LLC, 378 P.3d at 748 ("an erroneous requirement that only “an actual agreement” between the parties demonstrates permission.").

[lxxxi] McKenzie v. Pope, 33 P.3d 1277, 1280 (Colo. App. 2001) (“permission to use the property is granted to the adverse possessor by the true owner during the statutory period.”).

[lxxxii] Brown v. Faatz, 197 P.3d 245, 250 (Colo.App. 2008).  

[lxxxiii] Id. (Owner’s installation of a gate is generally deemed to make public’s use of a road permissive). 

[lxxxiv] Lo Viento Blanco, 489 P.3d at 742 ("Woodbridge did not accept those conditions and continued using the property as its own.").

[lxxxv] Cf. Restatement at § 2:16 cmt. f (“When a property owner gives permission to use property, the law implies that a license was intended.”).

[lxxxvi] Restatement at § 2:17 cmt. c (“On the negative side, it discourages neighborly conduct and accommodation. Landowners are required either to formalize permissive arrangements, or to prevent use by others to avoid the risk that rights will be established by prescription. Prescription tends to increase the costs of land ownership by creating a need for periodic monitoring to detect adverse uses.”).