Page 22 —
COLORADO REAL ESTATE JOURNAL
— November 5-November 18, 2014
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T
he recent Colorado
Court of Appeals deci-
sion in Graham v.
Jules Investment Inc. should
have landowners thinking
twice before bringing a lawsuit
against a neighbor for trespass.
In a departure from the expect-
ed remedy in a trespass action,
the court’s Oct. 9 decision forc-
es the plaintiff in a trespassing
lawsuit to sell its property to its
trespassing neighbor.
The Graham case involves a
unique set of circumstances.
At one time, the defendant in
the case owned all of the prop-
erty at issue as a single par-
cel in El Paso County. Later,
the property was divided into
a 10-acre parcel, still owned
by defendant, and a 36.5-acre
parcel now owned by plain-
tiff. The defendant operates a
wildlife refuge housing tigers,
lions and other exotic animals,
many of which are threatened
or endangered species, on the
smaller parcel.
The refuge is known as Seren-
ity Springs Wildlife Center. The
plaintiff intends to use the 36.5-
acre parcel to raise livestock, a
use requiring at least a 35-acre
parcel pursuant to the El Paso
County zoning regulations.
The issue in the Graham case
arose after the plaintiff had a
survey of its property com-
pleted in 2012 and realized
that a number of the wildlife
center’s fence-enclosed pens,
and concrete lion and tiger
dens encroached onto approxi-
mately 1.7 acres of the plain-
tiff’s property. Unfortunately,
the plaintiff did not obtain a
survey of the 36.5-acre parcel
when purchasing the proper-
ty in 2010. Following the dis-
covery, the plaintiff brought
the Graham action, seeking
an order that the defendant
remove the encroaching struc-
tures and restore the 1.7 acres
to its natural state.
Despite the court’s recogni-
tion that the use and presence
of the structures on it constitute
a trespass on plaintiff’s prop-
erty, the court did not grant the
expected relief in a trespassing
suit and order the defendant
to remove the pens and dens.
Instead, the court accepted a
new remedy
in Colorado
and forced
the plaintiff
to sell the 1.7
acres to the
defendant.
The court
came to this
s t a r t l i n g
decision by
first deter-
mining that
the
defen-
dant acted
in good faith
when constructing the struc-
tures. Specifically, the court
acknowledged that the pens
and dens were constructed by
the defendant during the peri-
od when the defendant owned
both its current parcel and the
36.5-acre parcel. Additionally,
the court recognized that a sur-
veyor was hired to identify the
fence line enclosing the struc-
tures as the property boundary
of the 36.5-acre parcel when it
was severed from the defen-
dant’s larger parcel.
Satisfied that the defendant
acted in good faith, the court
was moved to analyze the “rel-
ative hardships” to the par-
ties of ordering the defendant
to remove the encroaching
structures from the plaintiff’s
property as requested by the
plaintiff. In this analysis, the
court found that the value of
the 1.7 acres to plaintiff was
$5,780, while the value of the
same property to the defendant
was several, if not hundreds, of
thousands of dollars more. The
court also found that the cost
of removing the structures also
is several times the value of
the 1.7 acres to plaintiff. Addi-
tionally, the court found that
the plaintiff had no “special
personal purpose” in mind for
the 1.7 acres and that there
was no indication that the 1.7
acres were particularly valu-
able to plaintiff. Finally, the
court found that the structures
could not practically be moved
as built and that allowing the
defendants to purchase the 1.7-
acre parcel provided “no real
limitation” on plaintiff’s future
use of the remainder of its
property.* Ultimately, the court
determined that the relative
hardships analysis weighed
substantially in favor of defen-
dant and, as a result, the forced
sale remedy was appropriate.
Notwithstanding the Gra-
ham decision, forced sale will
not become the standard rem-
edy for trespass in Colorado.
The court is explicit through-
out its decision that forced sale
is an “extraordinary and nonfa-
vored judicial remedy.” Never-
theless, a potential plaintiff in
a trespassing lawsuit will need
to undertake a more nuanced
approach to analyzing the
merits and possible outcome
of suing a trespassing neigh-
bor. Even taking the existence
of a trespass for granted, the
plaintiff will need to consider
whether the trespasser acted in
good faith when constructing
the encroaching structures and
whether the relative hardships
of requiring the removal of the
structures weighs substantial-
ly in favor of the trespassing
party.
The Graham decision also
reiterates a simple, but some-
times overlooked, rule: A pur-
chaser must always conduct
appropriate due diligence
activities, including obtain-
ing a survey, prior to buying
real property. A survey com-
pleted at the time the plaintiff
purchased the 36.5-acre parcel
almost certainly would have
identified the encroaching
structures and the expense and
time consumed in litigation
could have been avoided.
The Graham decision has not
yet been issued by the court for
publication and the decision
may be appealed.
*The court recognized that the
forced sale reduces the size of
plaintiff’s parcel to 34.8 acres,
which is less than the 35 acres
required by the El Paso County
zoning regulations to graze live-
stock, but was satisfied that this
issue was resolved since the plain-
tiff would receive a waiver of the
requirement from El Paso County
at defendant’s cost.
s
W. Craig Willis
Associate, Holland &
Hart LLP’s real estate
group, Denver
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