Quick Tips

Boundary Disputes & Ownership of Real Estate Through Adverse Possession

Boundary Disputes between neighbors in rural Colorado are common and often far more complex than most property owners may imagine.  Under the legal doctrine of Adverse Possession, a person may, under certain circumstances and after passage of sufficient time, acquire legal title to her neighbor’s property, without every receiving a deed. Commonly referred to as “Squatters’ Rights,” this legal doctrine can apply in a number of circumstances. It most often arises when someone occupies – continuously for at least 18 years – property she does not own. To acquire ownership by Adverse Possession, the claimant must make exclusive use of the property under circumstances that would make any reasonable owner aware that the occupant asserts ownership of the land to the exclusion of the record owner.   The occupant under Adverse Possession must prove continuous, obvious, exclusive possession of the property and use of a character  clearly hostile to the interest of the true owner.  Claims based on Adverse Possession often arise when property changes hands and the new owner discovers that a fence, previously presumed  to have been the boundary, doesn’t actually lie on the established, legal boundary.  Resolving such disputes usually requires a deep dive into the history of the fence, the boundary and the relationship between the neighboring property owners over a long period of time.  Please call Weaver & Fitzhugh, PC if you have concerns or need more information about Adverse Possession or related issues.

Posted in General Law Tips

Construction Law

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Posted in Construction Law

Probate Estates and Process

Anyone who has lost a family-member or other loved one may have need for assistance with the legal aspects of settling the decedent’s financial affairs.  Probate is the legal mechanism for collecting a deceased person’s property, paying her debts and taxes and distributing property to whomever is legally entitled to receive it .

Probate is not always necessary to settle the decedent’s affairs.  Some assets will pass automatically upon death to another person.  Bank accounts or investment accounts with pay on death designations, life insurance policies or retirement accounts with beneficiary designations, and property (whether real or personal)  held in joint tenancy with right of survivorship will pass automatically to some one or more designated individuals, and thus do not require a probate estate.  Property titled in a trust and certain personal property having a collective value of less than the statutory limit may also pass without a probate estate. Title to estate owned solely in the decedent’s  name or in his name as a co-tenant with someone else can only be transferred through the probate process.  Most personal property other than those type mentioned above must also pass through probate.

Probate in Colorado  typically takes from about 6 months to a year, but in complex cases many times may take much longer.  A probate estate is initiated in Colorado with an application to the District Court of the county in which the deceased resided at the time of death.  The court will appoint a personal representative who will take charge of the deceased individual’s assets and debts.

If the death of a friend or family member has left you with unanswered questions about her property and debt, please call Weaver & Fitzhugh, PC for more information

 

Posted in Wills/Probate

Dividing Property in Divorce: Marital and Separate Property

Many lay people do not understand that, before dividing property in divorce,  a judge must first distinguish between marital and separate property.  The judge cannot simply divide all property and debt equally between the parties.  Although that happens sometimes, Colorado law does not require such a result.  The law actually requires courts to follow a multi-step process in awarding property to divorcing spouses.  The Court must first have a clear understanding of all property owned by the spouses together and as individuals.  The court must then classify each item of property as separate (belonging to only one spouse) or as marital (belonging to both spouses).  The court then awards each item of  separate property to the appropriate spouse, husband or wife.  Finally, the court must divide the marital property not equally, but  fairly between the spouses.

Classification of property as marital or separate can have a profound impact on the over-all division of property, because neither spouse has any rights to the separate property of the other.  The name on the title of any specific property does not necessarily affect its classification of marital or separate.  In classifying property as marital or separate, the court must follow rules created by the State Legislature.  As a general rule, property acquired by either spouse before the date of the marriage is separate, and property acquired after the marriage is marital.  However, the statute creates numerous exceptions to these general rules.

Many variable factors can influence a court to divide the marital property in some proportion other than 50-50.  Such factors include, for example,  age, health, earning ability of each spouse and the value of separate property awarded to each individual spouse. In some unusual cases, the court may award a large majority of the marital property to one or the other spouse.   In other cases, it may divide the property very nearly equally.

For a better understanding of property division and all other issues arising in divorce, contact Weaver & Fitzhugh, P.C. today.  Our lawyers and staff have over fifty years’ combined experience in handling all aspects of divorce. We can assist in finding creative solutions to avoid costly litigation and will do so whenever possible.  However, if necessary, we will provide expert, effective assistance in litigating the most difficult disputes.

Posted in Family Law

Forming Small Business Entities

Do you plan to start a small business?  Do you already own one as a sole proprietor or in partnership with others?  In either case,  you may benefit from organizing your business as a corporation, limited liability company or other business entity.

Among other advantages, a business entity can help insure that legal liabilities and other potentially adverse consequences resulting from business activities – accidents and business disputes, for example –  fall not on the individual business owner and her personal assets, but only on the business entity and its assets.  However, failure to choose the appropriate business form – or failure to properly manage and administer it – can have negative consequences for the individual owner.

For answers to your questions about small business entities and assistance in forming one, please visit our office or call for an appointment today.

Posted in Business Entities

Adverse Possession in Colorado

A few of years ago, in response to a notorious Boulder County Court battle between two neighbors, the Colorado Legislature enacted statutory changes to the Common Law rules of Adverse Possession. In essence, the legislature enacted provisions making it more difficult for anyone to acquire title to the real estate of another person through adverse possession.   However, contrary to rumor and conventional wisdom, the doctrine of adverse possession remains a very important part of Colorado Real Estate Law.  In Colorado, under certain circumstances a so-called “squatter” may still acquire rights in real estate and sometimes even outright title.  It therefore remains important for Colorado real property owners to act diligently and within legal limits if  some third party is now (or has in the past) occupied or trespassed upon their real estate for any substantial period of time.  Despite recent legislative changes, failure to act diligently in such situations could ultimately result in loss of real property rights. Weaver & Fitzhugh, PC prosecutes and defends adverse possession cases throughout the Seventh Judicial District, including Montrose, Delta, Ouray and San Miguel (Telluride/Norwood) Counties.  For more information about adverse possession and other real property issues, please call or visit our offices today.

Posted in General Law Tips, Legal Quick Tips, Real Estate

Do You Have a Right to a Mechanic’s Lien?

If you have done work or supplied materials contributing to any improvement to real property within the State of Colorado – with or without a contract – and have not received payment, you may have the right to collect payment for your materials or work by recording and foreclosing a mechanic’s lien.  Perfection and enforcement of a Mechanic’s Lien requires very strict adherence to the requirements of Colorado’s Mechanic’s Lien Statute.  Failure to meet deadlines and adhere to technical legal requirements can  invalidate a mechanic’s lien.

Homeowners who have paid the full contract price for construction of their home may in some circumstances defeat a mechanic’s lien and, sometimes, recover attorney fees for the costs of defending against a mechanic’s lien foreclosure.

For more information about creation, perfection and enforcement of Mechanic’s Liens, please call or visit us today.

Posted in General Law Tips

DUI: Drugs, Alcohol and Driving in Colorado

If arrested for Driving Under the Influence, Driving While Ability Impaired or Driving With Excess Alcohol  (DUI/DUID, DUI per se, or DWAI) in Colorado, you should contact a lawyer immediately.  People arrested in Colorado for any of these charges often must defend two entirely separate legal proceedings: one through the court system and one through the Department of Revenue, Division of Motor Vehicles (D.M.V.).  Because the D.M.V. proceeding requires the driver to take the initiative by requesting a hearing with the D.M.V. within seven days of arrest, many drivers wind up losing their driver’s licenses at the D.M.V. long before they ever have their “day in court.”

Colorado’s Express Consent law obligates a driver to submit to drug and/or alcohol testing following a valid arrest for any of these charges.   Failure to cooperate in the testing or test results showing a BAC beyond the legal limit can lead to license revocation before the driver even has his “day in court.”  However, before the arresting officer has a legal right to request an alcohol or drug test, he must have probable cause to arrest the driver and he must follow the other procedures specified by law.  If the arresting officer fails to follow the legal protocol, the driver may have valid defenses to both criminal conviction and to driver’s license revocation.

Following initial license revocation upon arrest, the driver has a right to a hearing in the DMV to determine the validity of  the revocation.  Unless the driver takes the initiative to request that hearing, she loses the right.  Failure to seek effective legal counsel may also jeopardize the driver’s chances of prevailing at the hearing.

DUID charges involve similar considerations for the defendant and his attorney, but also differ substantially from alcohol-related charges.  Such cases are sometimes less difficult to defend than alcohol cases. In alcohol cases, the law presumes the driver was under the influence if her B.A.C. exceeded .08.   In contrast, the law does not create any presumptions of DUID based solely on the level of any other drug present in the driver’s blood. To obtain a conviction in a drug case, the prosecuting attorney will have to prove much more than the amount of any particular drug detected in the driver’s blood.  This requirement creates some potential advantages for the defendant and his attorney. However, any amount of drugs in your system can potentially support a conviction in DUID charges, so it is important for a defendant to consult competent legal counsel. DUI arrests based on drugs have risen sharply in recent years, and are prosecuted vigorously throughout Colorado.

To find out whether you may have a right to a temporary driver’s license and an administrative hearing through the D.M.V., whether you have valid defenses to drug or alcohol driving charges, and for other advise relating to DUI/DUID, DWAI and similar legal matters, please call or visit our offices today.

Posted in General Law Tips

Common Law Marriage in Colorado

Colorado Law recognizes and treats Common Law Marriage precisely as it does licensed, ceremonial marriages.   However, most people have very little understanding about what creates a Common Law Marriage.  For example, many people ask us ‘”but don’t I have to live with my ‘significant other’ for at least seven years before we can have a common law marriage?”  The answer is simply “NO!”  Colorado Law requires no minimum period of cohabitation for creation of a Common Law Marriage.  The requirement for such a marriage really comes down to whether both parties intend to be married and whether they have lived together in the State of Colorado with the necessary intent.

Common Law marriage may affect the rights of “unmarried” couples in many situations, including: dissolution of marriage, parenting rights, child support, alimony or maintenance, estate planning, and distribution of property under a will or similar situation following death.   For more information about how  Common Law Marriage may affect the legal rights and duties of “unmarried” couples in Colorado, call or visit our offices today.

Posted in Family Law

Legal Requirements for Management of Home Owner Associations

Most Colorado Home Owners Associations must comply with The Colorado Common Interest Ownership Act (CCIOA). HOA’s subject to CCIOA must adopt uniform policies and procedures for managing their business.

Policies Required by Statute

CCIOA requires that HOA’s adopt and follow certain minimum policies, including (1) the adoption and amendment of policies, procedures and rules; (2) collection of unpaid assessments; (3) handling board member conflicts of interest; (4) conduct of meetings; (5) enforcement of covenants and rules, including notice and hearing procedures; (6) owners’ right to inspect and copy records; (7) investment of reserves; (8) dispute resolution; and (9) a reserve study policy.

CCIOA doesn’t specify details for any of these policies.  As a result, each HOA should develop procedures suited to its own needs.

Other Policies

All HOA’s are similar, but each is unique in some ways.  Therefore, in addition to minimum policies, well run HOA’s will develop other special policies to manage important issues. For example, most HOA’s own common assets such as green space.  Each HOA board should consider adopting policies addressing responsible use and maintenance of its own facilities.

Enforcement Restrictions

CCIOA restricts HOA’s from certain enforcement actions unless they have adopted policies mandated by law.   For example, the HOA may not fine a unit owner for alleged violations unless it follows a written policy. In addition, the policy must provide the unit owner notice and an opportunity to be heard before an impartial decision maker.

Conclusions

Failure to adopt and follow policies required by CCIOA will lead to inconsistent application of HOA covenants and rules, which can lead to serious conflicts. Furthermore, failure to comply with the law may completely prevent an HOA from enforcing some covenants.  For more detailed information about these requirements and other legal issues affecting creation and management of HOA’s, call or visit our offices today.

Posted in General Law Tips