Tuesday, March 16, 2010

Revival of Colorado Judgment Lien Based on Foreign Judgment

The Colorado Supreme Court recently held that, in order to revive a judgment lien recorded in Colorado based on a foreign judgment domesticated in Colorado pursuant to the Uniform Foreign Enforcement of Judgments Act, C.R.S. secs. 13-53-101 et seq., the judgment creditor must revive both the foreign judgment in the jurisdiction in which it was originally issued and the domesticated foreign judgment in Colorado before filing a transcript of the revived domesticated judgment in the county where the orginal transcript was recorded. Wells Fargo Bank, N.A., v. Kopfman, 08SC783 (March 15, 2010).

In this case, the judgment creditor attempted to revive a judgment lien based on a foreign judgment domesticated in Colorado by simply reviving the foreign judgment in Arizona, where it was originally issued, and recording an affidavit of renewal in the county in which the original transcript of judgment for the domesticated judgment was recorded. The trial court ruled that the judgment lien was properly extend. The Court of Appeals reversed, and the Supreme Court granted certiorari and affirmed.

Under Colorado law, a judgment lien is valid for a period of six years after entry of judgment, and may be revived prior to expiration of the six-year period by reviving the judgment "as provided by law" and recording a transcript of such revived judgment in the county in which the original judgment was record. C.R.S. sec. 13-52-102(1). With respect to foreign judgments, "the six-year period begins to run from the date the foreign court entered the original judgment. " Kopfman, supra, p. 10.

The Supreme Court held that, when read together with C.R.C.P. 54(h), which provides the procedure for reviving a judgment, and the Uniform Enforcement of Foreign Judgments Act, the term "as provided by law" in C.R.S. sec. 13-52-102(1) requires that the judgment be revived first in the original foreign jurisdiction and then in the jurisdiction in Colorado in which it was domesticated.

Posted By: Brent W. Houston, Esq.

Monday, March 8, 2010

YOUR OLD SHED IS ON YOUR NEIGHBOR'S PROPERTY - WHAT HAPPENS?

The Colorado Court of Appeals recently ruled on a case involving the rights of neighboring land owners with respect to a metal shed used and maintained by one neighbor ("Shed Owner") on the land of the other neighbor ("Land Owner") for many years. Hunter v. Mansell, 09CA0799 (Colo. Ct. App., March 4, 2010).

The shed in question was constructed in 1974 by Shed Owner's predecessor in title. Shed Owner purchased the property in 2001, and at the time of purchase, was informed by the seller that the shed encroached on Land Owner's property. In 2006, Land Owner filed a trespass action against Shed Owner seeking removal of the shed. Shed Owner countered with a claim alleging she was the owner of the land on which the shed was located by adverse possession.

On the adverse possession claim, the trial court ruled that Shed Owner did not own the shed site because Shed Owner's predecessor disclosed to Shed Owner that the shed encroached on Land Owner's property, and, therefore, Shed Owner could not "tack" the previous owner's adverse possession period for purposes of the 18-year period prescribed by statute.

Under Colorado law, a person who has been in exclusive and uninterrupted possession of another person's real property for at least 18 years and the possession has been actual, adverse, hostile, and under a claim of right, such person becomes the owner of such property by adverse possession. C.R.S. sec. 38-41-101. For purposes of calculating the 18-year period, a current owner may add or "tack" continuous adverse possession by prior owners.

The trial court held that the disclosure of the encroachment constituted a disclaimer of any "claim of right" to the disputed strip of property on which the shed stood. The Court of Appeals rejected this analysis because the 18-year statutory period had already expired when the "disclaimer" took place. It stated that "[u]pon expiration of the statutory period, ownership vests in the person adversely possessing and it can be transferred only by deed, not by a disclaimer." Hunter, supra, at 12. Notwithstanding, the Court of Appeals upheld the trial court's dismissal of Shed Owner's adverse posession claim because possession of the property was not "hostile" for the statutory period. The Court found that Shed Owner's possession of the disputed strip was initially permissive, and therefore not hostile, because the evidence showed that Shed Owner's predecessor entered into a lease of the disputed strip within the first 18 years after the shed was constructed, thereby terminating any adverse possession.

Regarding Land Owner's trespass claim, the trial court's remedy was to give the Shed Owner the choice of leasing the disputed property indefinitely for one dollar per month or purchasing the disputed property for an appraised value. The Court of Appeals reverse the trial court's remedies and remanded for entry of a mandatory injunction requiring the removal of the shed from Land Owner's property. Although not necessary to its ruling, the Court rejected the notation that a court could award a trespasser the right to purchase property from the owner of that property.

The general rule is that removal is the appropriate remedy for trespass of this type. However, exceptions have been made where the encroachment is slight or harmless (e.g. a commercial building encroaching by a couple of inches) and/or the expense of removal greatly outweighs the damage suffered by the plaintiff (e.g. removing two inches from a commercial building compared to the value to plaintiff of those two inches of land). See Golden Press v. Rylands, 235 P.2d 592 (1951). In such cases, the court may fashion other appropriate awards (e.g. damages related to the value of the lost property).

In Hunter, the Court of Appeals held that removal of the shed was not sufficiently costly to warrant breaking from the general rule favoring an injunction for mandatory removal, particularly where the majority of the costs cited by Shed Owner were related to improves to the shed incurred after Shed Owner acquired the property with knowledge of the encroachment.

Posted By: Brent W. Houston, Esq.