Lensky v. DiDomenico
2016 COA 89
| Colo. Ct. App. | 2016Background
- In 1998 Lensky bought a 1-acre parcel and discovered the improvements he bought actually sat on an adjacent ~23-acre tract with unclear title; he later paid back taxes and sought quiet title by adverse possession.
- Lensky initially obtained a default quiet title decree after service by publication; the decree was later vacated under C.R.C.P. 60(b)(3) because defendants (neighboring land users/record owners) were not named or personally served.
- After an affirmed ruling rejecting his quiet-title claim, Lensky continued to occupy and improve the adjacent property, posting signs, locking gates, erecting fences, and excluding others; the parties stipulated he was a putative adverse possessor.
- Defendants sought an order requiring Lensky to remove barriers and to stop excluding them from the property; the trial court concluded Lensky had no possessory rights and ordered removal of barriers and no interference with defendants’ access.
- On appeal the court addressed whether a putative adverse possessor who lacks legal title nonetheless holds a possessory interest enforceable against everyone except the true owner, including the right to exclude others.
Issues
| Issue | Lensky's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Whether a putative adverse possessor has an enforceable possessory interest before statutory period completes | Lensky: Yes — a putative adverse possessor holds an interest enforceable against everyone but the true owner and may exclude others | Defs: No — because Lensky lacks legal or equitable title (as previously adjudicated), he cannot exclude others | Court: Yes — a putative adverse possessor has a possessory interest enforceable against all except the true owner, including the right to exclude |
| Whether prior adjudication that Lensky had no title prevents him from retaining possessory rights | Lensky: Prior rulings concerned title only and did not resolve ongoing possessory rights | Defs: Law of the case bars Lensky from possessing or excluding others | Court: The prior rulings did not adjudicate possessory rights; law of the case does not strip the putative adverse possessor of possessory rights |
| Whether defendants’ historical recreational use gives them superior rights | Lensky: Defs never claimed ownership or proven a prescriptive easement | Defs: Longstanding community use should allow continued access | Court: Defs did not prove a superior legal interest (e.g., prescriptive easement); Lensky’s possessory interest remains superior to mere users |
| Proper relief to protect possessory interests (scope of C.R.C.P. 105 authority) | Lensky: Court should recognize possessory rights and not force removal of his measures to exclude others | Defs: Court may issue orders under C.R.C.P. 105 to remove barriers and restore access | Court: Declined to resolve broader Rule 105 / ejectment questions; reversed order that prohibited Lensky from excluding others |
Key Cases Cited
- Spring Valley Estates, Inc. v. Cunningham, 510 P.2d 336 (Colo. 1973) (dictum that an adverse possessor has an interest enforceable against everyone except the true owner until statutory period matures)
- Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008) (standard of review for legal questions)
- Smith v. Hayden, 772 P.2d 47 (Colo. 1989) (elements and intent required for adverse possession)
- Schuler v. Oldervik, 143 P.3d 1197 (Colo. App. 2006) (open and obvious use standard to notify true owner)
- Beaver Creek Ranch, L.P. v. Gordman Leverich Ltd. Liab. Ltd. P’ship, 226 P.3d 1155 (Colo. App. 2009) (statutory elements and period for adverse possession)
- Uliasz v. Gillete, 256 N.E.2d 290 (Mass. 1970) (possession entitled respondent to continue in possession against all except true owner)
- Hallmark v. Baca, 301 P.2d 527 (N.M. 1956) (putative adverse possessor entitled to remain until ousted by one showing better right)
- Howard v. Mitchell, 105 S.W.2d 128 (Ky. Ct. App. 1936) (describing adverse possession as inchoate or imperfect ownership protectable against all but true owner)
- Meyer v. Ellis, 411 P.2d 338 (Wyo. 1966) (possession establishes prima facie interest good against claimants lacking better right)