Amendments HB08-1148

Amendments for HB08-1148

House Journal, February 7
Amend printed bill, page 2, strike lines 5 through 13.
29
30 Page 3, strike lines 1 through 12 and substitute the following:
31 "38-41-101. Limitation of eighteen years. (3) (a) IN ADDITION
32 TO ANY OTHER REQUIREMENTS SPECIFIED IN THIS PART 1, IN ANY ACTION
33 FOR A CLAIM FOR FEE TITLE TO REAL PROPERTY BY ADVERSE POSSESSION
34 FOR WHICH FEE SIMPLE TITLE VESTS ON OR AFTER JULY 1, 2008, IN FAVOR
35 OF THE ADVERSE POSSESSOR AND AGAINST THE OWNER OF RECORD OF THE
36 REAL PROPERTY UNDER SUBSECTION (1) OF THE SECTION, A PERSON MAY
37 ACQUIRE FEE SIMPLE TITLE TO REAL PROPERTY BY ADVERSE POSSESSION
38 ONLY UPON SATISFACTION OF EACH OF THE FOLLOWING CONDITIONS:
39
40 (I) THE PERSON PRESENTS EVIDENCE TO SATISFY ALL OF THE
41 ELEMENTS OF A CLAIM FOR ADVERSE POSSESSION REQUIRED UNDER
42 COMMON LAW IN COLORADO.
43
44 (II) EITHER THE PERSON CLAIMING BY ADVERSE POSSESSION OR A
45 PREDECESSOR IN INTEREST OF SUCH PERSON HAD A GOOD FAITH BELIEF
46 THAT THE PERSON IN POSSESSION OF THE PROPERTY OF THE OWNER OF
47 RECORD WAS THE ACTUAL OWNER OF THE PROPERTY AND THE BELIEF WAS
48 REASONABLE UNDER THE PARTICULAR CIRCUMSTANCES.
49
50 (b) IN ORDER TO PREVAIL ON A CLAIM ASSERTING FEE SIMPLE TITLE
51 TO REAL PROPERTY BY ADVERSE POSSESSION, THE PERSON ASSERTING THE
52 CLAIM SHALL PROVE EACH OF THE ELEMENTS OF THE CLAIM BY CLEAR AND
53 CONVINCING EVIDENCE.
54
55 (4) NOTWITHSTANDING ANY OTHER PROVISION IN THIS SECTION:
56
House Journal--30th Day--February 7, 2008 Page 301
1 (a) THE PROVISIONS OF PARAGRAPH (b) OF THIS SUBSECTION (4)
2 AND SUBSECTIONS (3) AND (5) OF THIS SECTION SHALL BE LIMITED TO
3 CLAIMS OF ADVERSE POSSESSION FOR THE PURPOSE OF ESTABLISHING FEE
4 SIMPLE TITLE TO REAL PROPERTY AND SHALL NOT APPLY TO THE
5 CREATION, ESTABLISHMENT, PROOF, OR JUDICIAL CONFIRMATION OR
6 DELINEATION OF EASEMENTS BY PRESCRIPTION, IMPLICATION, PRIOR USE,
7 ESTOPPEL, OR OTHERWISE, NOR SHALL THE PROVISIONS OF PARAGRAPH (b)
8 OF THIS SUBSECTION (4) OR SUBSECTIONS (3) OR (5) OF THIS SECTION
9 APPLY TO CLAIMS OR DEFENSES FOR EQUITABLE RELIEF UNDER THE
10 COMMON-LAW DOCTRINE OF RELATIVE HARDSHIPS, OR CLAIMS OR
11 DEFENSES GOVERNED BY ANY OTHER STATUTE OF LIMITATIONS SPECIFIED
12 IN THIS ARTICLE. NOTHING IN THIS SECTION IS INTENDED TO BE
13 INTERPRETED TO MEAN THAT ANY OTHER ELEMENTS OF A CLAIM FOR
14 ADVERSE POSSESSION THAT ARE NOT APPLICABLE TO THE CREATION,
15 ESTABLISHMENT, PROOF, OR JUDICIAL CONFIRMATION OR DELINEATION OF
16 EASEMENTS BY PRESCRIPTION, IMPLICATION, PRIOR USE, ESTOPPEL, OR
17 OTHERWISE ARE MADE APPLICABLE PURSUANT TO THE PROVISIONS OF THIS
18 SECTION.";
19
20 strike lines 13 through 17 and substitute the following:
21
22 "(b) NO PERSON MAY MAINTAIN A CLAIM FOR FEE SIMPLE TITLE BY
23 ADVERSE POSSESSION TO REAL PROPERTY OF A CHARITABLE
24 ORGANIZATION QUALIFIED UNDER SECTION 501 (c) (3) OF THE FEDERAL
25 "INTERNAL REVENUE CODE OF 1986", AS AMENDED, WHERE THE
26 FORMATION DATE OF THE CHARITABLE ORGANIZATION IS PROVEN TO HAVE
27 BEEN AT OR BEFORE THE COMMENCEMENT DATE OF THE PERIOD OF
28 LIMITATIONS UNDER THIS SECTION.";
29
30 strike lines 18 through 26 and substitute the following:
31
32 "(5) WHERE THE PERSON ASSERTING A CLAIM OF FEE SIMPLE TITLE
33 TO REAL PROPERTY BY ADVERSE POSSESSION PREVAILS ON SUCH CLAIM,
34 AND IF THE COURT DETERMINES IN ITS DISCRETION THAT AN AWARD OF
35 COMPENSATION IS FAIR AND EQUITABLE UNDER THE CIRCUMSTANCES, THE
36 COURT MAY, AFTER AN EVIDENTIARY HEARING SEPARATELY CONDUCTED
37 AFTER ENTRY OF THE ORDER AWARDING TITLE TO THE ADVERSE
38 POSSESSOR, AWARD TO THE PARTY LOSING TITLE TO THE ADVERSE
39 POSSESSOR:
40
41 (a) DAMAGES TO COMPENSATE THE PARTY LOSING TITLE TO THE
42 ADVERSE POSSESSOR FOR LOSS OF THE PROPERTY MEASURED BY THE
43 ASSESSED VALUATION OF THE PROPERTY FOR PROPERTY TAX PURPOSES AS
44 OF THE MOST RECENT VALUATION; AND
45
46 (b) AN AMOUNT TO REIMBURSE THE PARTY LOSING TITLE TO THE
47 ADVERSE POSSESSOR FOR ALL OR A PART OF THE PROPERTY TAXES AND
48 OTHER ASSESSMENTS LEVIED AGAINST AND PAID BY THE PARTY LOSING
49 TITLE TO THE ADVERSE POSSESSOR FOR THE PERIOD COMMENCING
50 EIGHTEEN YEARS PRIOR TO THE COMMENCEMENT OF THE ADVERSE
51 POSSESSION ACTION AND EXPIRING ON THE DATE OF THE AWARD OR ENTRY
52 OF FINAL NONAPPEALABLE JUDGMENT, WHICHEVER IS LATER. IF THE
53 PROPERTY LOST HAS NOT BEEN SEPARATELY TAXED OR ASSESSED FROM
54 THE REMAINDER OF THE PROPERTY OF THE PARTY LOSING TITLE TO THE
55 ADVERSE POSSESSOR, SUCH REIMBURSEMENT SHALL EQUITABLY
56 APPORTION THE AMOUNT OF THE REIMBURSEMENT TO THE PORTION OF THE
Page 302 House Journal--30th Day--February 7, 2008
OWNER'S PROPERTY 1 LOST BY ADVERSE POSSESSION, INCLUDING, AS
2 APPROPRIATE, TAKING INTO ACCOUNT THE NATURE AND CHARACTER OF
3 THE PROPERTY LOST AND OF THE REMAINDER. THE AMOUNT OF THE
4 AWARD SHALL BEAR INTEREST AT THE STATUTORY RATE FROM THE DATES
5 ON WHICH THE PARTY LOSING TITLE TO THE ADVERSE POSSESSOR MADE
PAYMENT OF THE REIMBURSEABLE TAXES AND ASSESSMENTS. 67
8 (c) AT ANY HEARING CONDUCTED UNDER THIS SUBSECTION (5), OR
9 IN THE EVENT THAT ADVERSE POSSESSION IS CLAIMED SOLELY AS A
10 DEFENSE TO AN ACTION FOR DAMAGES BASED UPON A CLAIM FOR
11 TRESPASS, FORCIBLE ENTRY, FORCIBLE DETAINER, OR SIMILAR
12 AFFIRMATIVE CLAIMS BY ANOTHER AGAINST THE ADVERSE POSSESSOR,
13 AND NOT TO SEEK AN AWARD OF LEGAL TITLE AGAINST THE CLAIMANT,
14 THE BURDEN OF PROOF SHALL BE BY A PREPONDERANCE OF THE EVIDENCE.
15 IF THE DEFENDANT IS CLAIMING ADVERSE POSSESSION SOLELY AS A
16 DEFENSE TO AN ACTION AND NOT TO SEEK AN AWARD OF LEGAL TITLE, THE
17 DEFENDANT SHALL SO STATE IN A PLEADING FILED BY THE DEFENDANT
18 WITHIN NINETY DAYS AFTER FILING AN ANSWER OR WITHIN SUCH LONGER
19 PERIOD AS GRANTED BY THE COURT IN THE COURT'S DISCRETION, AND ANY
20 SUCH STATEMENT SHALL BIND THE DEFENDANT IN THE ACTION.".

House Journal, February 15
Amendment No. 2, by Representatives Levy, Witwer.
16
17 Amend the Judiciary Committee Report, dated February 6, 2008, page 1,
18 line 2, strike "12" and substitute "17".
19
20 Page 2, strike lines 4 through 6 and substitute the following:
21 "(4) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION,
22 THE PROVISIONS OF SUBSECTIONS (3) AND (5) OF THIS SECTION SHALL BE
23 LIMITED TO";
24
25 strike lines 11 and 12 and substitute the following:
26
27 "ESTOPPEL, OR OTHERWISE, NOR SHALL THE PROVISIONS OF SUBSECTIONS
28 (3) OR (5) OF THIS SECTION";
29
30 strike lines 16 through 18 and substitute the following:
31 "IN THIS ARTICLE. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO
32 MEAN THAT ANY ELEMENTS OF A CLAIM FOR ADVERSE POSSESSION THAT
33 ARE NOT OTHERWISE APPLICABLE TO THE CREATION,";
34
35 strike lines 23 through 30.
36
37 Page 3, strike lines 6 through 8 and substitute the following:
38
39 "ADVERSE POSSESSOR FOR THE LOSS OF THE PROPERTY MEASURED BY THE
40 ACTUAL VALUE OF THE PROPERTY AS DETERMINED BY THE COUNTY
41 ASSESSOR AS OF THE MOST RECENT VALUATION FOR PROPERTY TAX
42 PURPOSES; AND";
43
44 after line 38, insert the following:
45
46 "Page 4 of the printed bill, strike lines 1 and 2 and substitute the
47 following:
48 "effect July 1, 2008. The provisions of section 38-41-101 (3) (b) and (5),
49 Colorado Revised Statutes, in section 1 of this act shall apply to civil
50 actions filed on or after said date. All other provisions of this act shall
51 apply to claims for title to real property for which fee simple title vests in
52 favor of the adverse possessor and against the owner of record of the real
53 property on or after said date.".".
54
55 As amended, ordered engrossed and placed on the Calendar for Third
56 Reading and Final Passage.

Senate Journal, March 13
After consideration on the merits, the Committee recommends that HB08-1148 be
amended as follows, and as so amended, be referred to the Committee of the Whole with
favorable recommendation.

Amend reengrossed bill, page 2, strike lines 5 through 13 and substitute
the following:

"38-41-101. Limitation of eighteen years. (3) (a) IN ORDER TO
PREVAIL ON A CLAIM ASSERTING FEE SIMPLE TITLE TO REAL PROPERTY BY
ADVERSE POSSESSION IN ANY CIVIL ACTION FILED ON OR AFTER JULY 1,
2008, THE PERSON ASSERTING THE CLAIM SHALL PROVE EACH ELEMENT OF
THE CLAIM BY CLEAR AND CONVINCING EVIDENCE.

(b) IN ADDITION TO ANY OTHER REQUIREMENTS SPECIFIED IN THIS
PART 1, IN ANY ACTION FOR A CLAIM FOR FEE SIMPLE TITLE TO REAL
PROPERTY BY ADVERSE POSSESSION FOR WHICH FEE SIMPLE TITLE VESTS
ON OR AFTER JULY 1, 2008, IN FAVOR OF THE ADVERSE POSSESSOR AND
AGAINST THE OWNER OF RECORD OF THE REAL PROPERTY UNDER
SUBSECTION (1) OF THE SECTION, A PERSON MAY ACQUIRE FEE SIMPLE
TITLE TO REAL PROPERTY BY ADVERSE POSSESSION ONLY UPON
SATISFACTION OF EACH OF THE FOLLOWING CONDITIONS:

(I) THE PERSON PRESENTS EVIDENCE TO SATISFY ALL OF THE
ELEMENTS OF A CLAIM FOR ADVERSE POSSESSION REQUIRED UNDER
COMMON LAW IN COLORADO; AND

(II) EITHER THE PERSON CLAIMING BY ADVERSE POSSESSION OR A
PREDECESSOR IN INTEREST OF SUCH PERSON HAD A GOOD FAITH BELIEF
THAT THE PERSON IN POSSESSION OF THE PROPERTY OF THE OWNER OF
RECORD WAS THE ACTUAL OWNER OF THE PROPERTY AND THE BELIEF WAS
REASONABLE UNDER THE PARTICULAR CIRCUMSTANCES.".

Page 3, strike lines 1 through 11.

Page 5, strike line 19 and substitute the following:

"effect July 1, 2008. The provisions of section 38-41-101 (3) (a),".

Education

Senate Journal, March 28
HB08-1148 by Representative(s) Witwer and Levy, Balmer, Benefield, Buescher, Carroll M., Casso,
Fischer, Gallegos, Gardner B., Garza-Hicks, Hodge, Jahn, Kerr A., Kerr J., King, Labuda,
Lambert, Liston, Looper, Lundberg, Marostica, May M., McKinley, McNulty, Mitchell V.,
Peniston, Scanlan, Sonnenberg, Summers, Swalm, Vaad, Weissmann; also Senator(s) Tupa,
McElhany, Schultheis, Mitchell S., Tochtrop, Spence, Boyd, Bacon, Brophy, Cadman,
Gibbs, Kopp, Penry, Renfroe, Romer, Sandoval, Wiens, Williams--Concerning the
sufficiency of the assertion of a claim for title to real property by adverse possession under
Colorado law.

Amendment No. 1, Judiciary Committee Amendment.
(Printed in Senate Journal, March 13, pages 554-555 and placed in members' bill files.)

Amendment No. 2(L.011), by Senator Tupa

Amend reengrossed bill, page 4, line 14, strike "PURPOSES; AND" and
substitute "PURPOSES. IF THE PROPERTY LOST HAS NOT BEEN SEPARATELY
TAXED OR ASSESSED FROM THE REMAINDER OF THE PROPERTY OF THE
PARTY LOSING TITLE TO THE ADVERSE POSSESSOR, THE COURT SHALL
EQUITABLY APPORTION THE ACTUAL VALUE OF THE PROPERTY TO THE
PORTION OF THE OWNER'S PROPERTY LOST BY ADVERSE POSSESSION
INCLUDING, AS APPROPRIATE, TAKING INTO ACCOUNT THE NATURE AND
CHARACTER OF THE PROPERTY LOST AND OF THE REMAINDER.".

As amended, ordered revised and placed on the calendar for Third Reading and Final
Passage.