Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the October 6, 2016 mailing of "Constructive Notice":

Possessory Rights of Adverse Claimant

In a case of first impression, the Colorado Court of Appeals has held that a putative adverse possessor, who lacks a legal claim to title in property, nevertheless has an interest in the property enforceable against everyone except the rightful owner. Lensky v. DiDomenico, #2016COA89 (Col. Ct App. June 16, 2016) reh’g denied July 21, 2016.

Lensky had occupied and improved approximately 17 acres that the local tax assessor “referred to as ‘no man’s land’ because the record owner ‘could not be traced.’” He renovated old structures, erected new structures, erected fences, hung “no trespassing” signs, and placed locks on existing gates. In a proceeding separate from the one involving the instant appeal, he brought suit to quiet title based on adverse possession. The trial court concluded that Lensky had no legal or equitable title to the subject property.

The defendants in the instant action argued that they and other members of the community had used the subject property for decades-- removing sand from the property, riding horses, riding ATVs, and children playing. Although they claimed no ownership interest in the property, no right to a prescriptive easement nor any other interest superior to Lensky’s, they argued that Lensky could not exclude them from the property. Defendants argued that because Lensky had been found to have no legal or equitable claim to the subject property in the earlier proceeding, he had no right to restrict their access to it. Instead of asking the trial court to order Lensky’s removal from the property, however, they merely requested unrestricted access to and use of it.

Relying on dicta from a 1972 case, the Court of Appeals held that from the beginning of his possession period, one in possession of property has an interest in the property enforceable against everyone except the owner or one claiming through the owner. Thus, despite Lensky’s inability to prove all elements of adverse possession, his status as a “putative adverse possessor” gave him the right to exclude anyone who did not claim record ownership.


The defendants didn’t help their cause when they “stipulated that Lensky was a ‘putative adverse possessor,’ i.e., that Lensky was reputed or believed by most people to be one attempting to adversely possess the subject property.”

Both a petition and cross-petition for certiorari were filed in the Supreme Court in August. Since this case presents a novel question for many jurisdictions, the Constructive Notice newsletter will monitor future developments.