Colorado Supreme Court Rules on Adverse Possession of Parking Space

The Colorado Supreme Court recently ruled that an entity claiming title to a parking space in a condominium community by adverse possession under color of title could not sell the space free from the transfer restrictions in the condominium declaration. B.B. & C. Partnership, v. The Edelweiss Condominium Assoc'n, Case no. 08SC394 (Colo. S.Ct., October 13, 2009).

This case involved a parking space located in the Edelweiss Condominiums in Vail, referred to as "parking space 21." In 1976, BB&C purported to purchase parking space 21 from a former owner of a condominium unit, receiving a warranty deed to the space which provided, in pertinent part, that the conveyance was "subject to the terms, covenants, conditions, easements, restrictions, uses, limitations and obligations set forth in [the]Declaration" governing the condominium. The condo declaration restricted sale of parking spaces to other condo owners. BB&C was not a condo owner.

After obtaining the deed for parking space 21, an employee of BB&C parked his car in the space for a period of more than 20 years, during which time BB&C paid all taxes, maintenance fees, and insurances fees. In 2003, BB&C attempted to sell parking space 21 to a third-party non-condominium owner, but the condo association blocked BB&C's access to the space -- access being through a locked gate. BB&C filed a quiet title action claiming unrestricted fee simple ownership of parking space 21 by adverse possession under color of title pursuant to C.R.S. sec. 38-41-108.

C.R.S. 38-41-108 provides that person who is in possession of land for seven successive years, under color of title, made in good faith, and during that time pays taxes assessed on the land shall be adjudged the owner of the land "to the extent and according to the purport of his paper title." "Color of title" means title evidenced by a written document purporting to convey title to real property, but which fails to do so because of some defect.

The Supreme Court ruled that BB&C could obtain a quiet title judgment recognizing its ownership of parking space 21 if it proves its claim at the trial court level, but it is not entitled to a judgment for unrestricted fee simple ownership, title would be subject to the transfer restrictions in the condo declaration. It reasoned that parking space 21 was a limited common element of the condominium community subject to the restrictions contained in the condo declaration, and therefore the person from whom BB&C purported to purchase the space did not have unrestricted title, rather such title was subject to the condo declaration restrictions. Also, the "paper title" received by BB&C specifically provided that it was subject to the condo declaration. As a result, if BB&C successfully proves its quiet title claim, then its title will likewise be subject to the transfer restrictions contained in the condo declaration, effectively limiting the units sale to other condo owners.

Posted By: Brent W. Houston, Esq.