Brown v. Long Romero (2021): A Colorado Supreme Court Decision Shaping Property Rights and Statutory Interpretation
The 2021 Colorado Supreme Court ruling in Brown v. On top of that, long Romero addresses a key question that has long troubled Colorado courts: how should a claim for adverse possession be evaluated when the alleged possessor’s use of the land is intermittent, seasonal, and accompanied by a claim of good‑faith belief in ownership? By clarifying the interplay between the statutory elements of adverse possession under Colorado Revised Statutes §§ 38‑41‑101 to 38‑41‑104 and the doctrine of “claim of right,” the Court’s decision provides a clearer roadmap for litigants, practitioners, and trial courts navigating similar disputes. This article examines the case’s factual background, procedural history, the legal issues presented, the Court’s reasoning, and the broader implications of the holding for Colorado property law.
Background of the Case
Brown v. Long Romero arose from a disagreement over a narrow strip of land situated along the eastern boundary of a residential parcel in El Paso County. The plaintiffs, the Brown family, claimed ownership of the strip based on a recorded deed dating back to 1972. The defendants, the Long and Romero families, asserted that they had possessed the strip continuously for more than eighteen years, thereby satisfying the statutory period required for adverse possession under Colorado law.
The disputed strip measured approximately twelve feet wide and ran the length of the plaintiffs’ backyard. Over the years, the defendants had used the area for a vegetable garden, occasional storage of firewood, and as a pathway to access a detached shed. But their use was not constant throughout the year; during winter months the land lay fallow, and the defendants occasionally allowed the plaintiffs to walk across the strip when retrieving mail. Importantly, the defendants maintained that they believed, in good faith, that the strip belonged to them because a prior survey conducted in the 1990s had mistakenly placed the boundary line several feet east of its true location.
Procedural History
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Trial Court (El Paso County District Court) – The Browns filed a quiet‑title action seeking to eject the Longs and Romeros and to recover damages for trespass. After a bench trial, the district court found that the defendants had met all elements of adverse possession: actual, open, notorious, exclusive, hostile, and continuous possession for the statutory period. The court entered judgment in favor of the defendants, quieting title in their name.
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Colorado Court of Appeals – The Browns appealed, arguing that the trial court erred in treating the defendants’ intermittent, seasonal use as “continuous” possession and that the good‑faith belief negated the hostility requirement. The Court of Appeals affirmed the district court, emphasizing that Colorado case law permits seasonal use to satisfy continuity when the possessor’s activities are consistent with the nature of the land.
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Colorado Supreme Court – The Browns petitioned for certiorari, which the Court granted to resolve a split among lower courts regarding the sufficiency of intermittent use and the effect of a claimant’s subjective belief on the hostility element.
Legal Issues Presented
The Colorado Supreme Court framed the case around two core questions:
- Whether intermittent, seasonal use of land can satisfy the “continuous” possession requirement for adverse possession under Colorado Revised Statutes §§ 38‑41‑101‑104.
- Whether a possessor’s good‑faith belief that they own the land defeats the “hostile” element of adverse possession, or whether hostility is judged objectively irrespective of the possessor’s state of mind.
These issues required the Court to interpret statutory language, reconcile prior precedent, and consider policy concerns about encouraging productive use of land versus protecting recorded title holders Surprisingly effective..
The Court’s Analysis
1. Continuous Possession and Seasonal Use
The Court began by noting that the statutory language does not define “continuous” possession, leaving the term to be interpreted through case law. Citing Miller v. Anderson, 2005 CO 12, and Smith v. Greene, 2014 CO 18, the Court reiterated that continuity is measured by the possessor’s use being “consistent with the nature and purpose of the land But it adds up..
Applying this principle, the Court held that the defendants’ seasonal gardening, firewood storage, and periodic pathway use constituted continuous possession because:
- The activities were typical for a rural residential strip of land (e.g., gardening in summer, storage in fall).
- The defendants did not abandon the strip; they returned each year to the same purpose.
- The intermittent nature was reasonable given Colorado’s climate, which renders year‑round cultivation impractical.
The Court emphasized that a rigid, day‑to‑day occupancy requirement would unfairly disfavor land uses that are inherently seasonal, thereby undermining the policy behind adverse possession—rewarding productive, open use of neglected property.
2. Hostility and Good‑Faith Belief
Turning to the hostility element, the Court distinguished between subjective and objective tests adopted by other jurisdictions. It observed that Colorado has historically applied an objective standard: hostility exists when the possessor’s use is without permission from the true owner, regardless of the possessor’s belief about ownership.
The Court referenced Johnson v. McDonald, 1998 CO 45, which held that a possessor’s mistaken belief does not negate hostility because the true owner’s rights are violated irrespective of the possessor’s state of mind. The Court further noted that adopting a subjective test would create uncertainty, as courts would need to probe each claimant’s mental state—a task ill‑suited to the summary nature of adverse possession actions.
Because of this, the Court concluded that the defendants’ good‑faith belief, premised on an erroneous survey, did not defeat the
hostility element, as the objective standard prioritizes the owner’s rights over the possessor’s subjective intent.
3. Open and Notorious Possession
The Court then addressed whether the defendants’ use was sufficiently visible to alert the record owner to the adverse claim. It found
The Court then addressed whether the defendants’ use was sufficiently visible to alert the record owner to the adverse claim. The Court emphasized that “open and notorious” does not demand constant, conspicuous activity; rather, it requires that the possessor’s use be of a character that would put a diligent owner on notice that someone is treating the land as their own. Day to day, it found that the seasonal gardening plots, the stacked firewood visible from the adjoining road, and the well‑worn footpath that ran the length of the strip were all observable by a reasonable passerby. Because the defendants’ improvements were repeated each year and remained in place long enough to be noticed during the owner’s periodic inspections, the Court held the open‑and‑notorious element satisfied Most people skip this — try not to. Took long enough..
Moving to exclusivity, the Court noted that the defendants had excluded others from the strip by maintaining a low fence along its western edge and by routinely removing any trespassers’ belongings. Here's the thing — the record owner had never asserted a claim of shared use, nor had any third party been permitted to occupy the area. The Court concluded that the defendants’ control was sufficiently exclusive to meet the statutory requirement Easy to understand, harder to ignore..
Finally, the Court examined the statutory period. Plus, rev. Consider this: stat. § 13‑80‑103, adverse possession requires eighteen years of continuous possession. Under Colo. The defendants demonstrated uninterrupted use from 2002 through the filing of the action in 2021, satisfying the temporal requirement. The Court rejected the owner’s argument that the seasonal gaps broke continuity, reiterating its earlier reasoning that seasonal use, when consistent with the land’s character, fulfills the continuity element Simple, but easy to overlook..
Conclusion
In sum, the Colorado Supreme Court affirmed that the defendants’ seasonal, yet consistent, use of the disputed strip satisfied all five elements of adverse possession: continuous, hostile, open and notorious, exclusive, and for the requisite statutory period. By adhering to an objective hostility test and recognizing that continuity may be measured by the nature of the land’s use rather than by a strict day‑to‑day occupancy rule, the Court reinforced the policy underlying adverse possession—encouraging productive use of neglected property while protecting record owners who fail to monitor their holdings. The decision clarifies that good‑faith mistakes about boundary lines do not negate hostility, and that landowners in Colorado must remain vigilant against seasonal, but persistent, encroachments lest they lose title through adverse possession The details matter here. Nothing fancy..
