Adverse possession is a legal concept that allows someone who is not the legal owner of a piece of land to eventually gain ownership rights to that land through continuous, open, and exclusive possession of it for a specific period of time.
For actual landowners, the idea that someone else could eventually gain ownership of their land simply by occupying it can be unsettling and even unfair.
This article will discuss the element necessary to gain title to someone else’s land in California by adverse possession and, more importantly, how to prevent this from happening to your land.
Adverse Possession Law in California
To establish title by adverse possession in California, a person must establish five elements:
(1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner;
(2) Possession must be hostile to the owner’s title;
(3) The Holder Must Claim The Property As His Own, Either Under Color of Title or Claim of Right
(4) Possession must be continuous and uninterrupted for five years;
(5) The possessor must pay all the taxes levied and assessed upon the property during the period. (Unger v. Mooney, 63 Cal. 586; see Code Civ. Proc., 321 et seq.)
Unless each one of these elements is established by the evidence, the plaintiff has not acquired title by adverse possession.
How To Prove Adverse Possession In California
1. Actual Occupation Under Circumstances As To Constitute Reasonable Notice To The Owner
To prove adverse possession, a person must demonstrate that they occupied the property in a way that the owner would reasonably notice. West v. Evans (1946)
This means their possession should be evident and noticeable to both the true owner and other people.
Courts often refer to this as “open and notorious,” meaning that the occupation is visible and apparent. Buic v. Buic (1992)
This requirement ensures that the actual property owner becomes aware of the unauthorized use of their land. It allows them to take action to prevent the occupation from turning into a valid adverse possession claim.
Example: A Cable Company runs a cable under Landowner’s land, and there is no indication of the cable’s existence from the land’s surface. The Cable Company cannot gain title by adverse possession because there is nothing to put the Landowner on notice of the trespass.
2. Possession Must Be Hostile to The Owner’s Title
The term “hostile” in adverse possession doesn’t necessarily imply a disagreement about ownership during the possession time.
Instead, it means that the person claiming adverse possession must occupy the property in a way that goes against the rights of the legal owner without showing any recognition, either directly or implied, of the owner’s rights. Estate of Williams, supra, 73 Cal. App.3d at p. 147.
3. The Holder Must Claim The Property As His Own, Either Under Color of Title or Claim of Right
There are two ways to claim adverse possession:
- Color of Title: If you have some written document that gives you the right to the property (like a deed or court order), even if it’s not entirely valid, you can still claim ownership through adverse possession. This written document is called “color of title.” The key here is that you must genuinely believe you legally own the property based on this document.
- Claim of Right: This means you’re acting like you own the property without having any written document supporting your claim.
4. Possession Must Be Continuous and Uninterrupted For Five Years
Continuous possession requires only the degree of occupancy and use the average owner would make of the property.
California courts have held that intermittent occupancy periods generally are insufficient to establish “continuous” possession.
However, constant use by the person claiming adverse possession is not required as long as the possession is of the type the usual owner would make of the property.
Temporary absence from the land without an intention to abandon possession will not break the continuity of possession.
There also does not need to be five years of continuous possession by the same person. Ordinarily, an adverse possessor can take advantage of the periods of adverse possession by his predecessor.
Separate periods of adverse possession may be “tacked” together to make up the entire five-year period with the result that the final adverse possessor gets title to the land.
A landowner can interrupt the five-year continuous possession element of adverse possession by filing an action for trespass or ejectment. California Maryland Funding, Inc. v. Lowe (1995).
However, there’s a time limit of five years from when the adverse claimant started occupying the property. If the landowner does not take action within this five-year time frame, the landowner can’t later try to get the land back or defend the adverse possessor’s claim of ownership of the property. Fugl v. Witts (1950) 97 Cal.App.2d 495
5. The possessor must pay all of the taxes levied and assessed upon the property during the period
Title by adverse possession may not be acquired without payment by the claimant and his predecessors in title of `all the taxes, state, county or municipal, which have been levied and assessed upon such land.‘ (Sec. 325, Code Civ. Proc.)” Brown v. Clark, 89 Cal. 196.
Is a Title Obtained Through Adverse Possession a Good Title in California?
When title by adverse possession is perfected in California, the ownership of the land is as valid as can be held under any other deed title.
To obtain a perfected title by adverse possession, you must get a final adjudication by a court. This is usually done by filing a lawsuit to “quiet title” on the property.
Strategies to Safeguard Your Property Against Adverse Possession
Avoiding adverse possession of your property involves taking proactive measures to protect your ownership rights and prevent others from acquiring legal ownership through continuous and open use.
Here are some strategies to consider:
- Regular Property Inspections: Regularly inspect your property to ensure no one uses it without your permission. This will help you identify any potential adverse possession claims early on.
- Clear Boundaries: Mark the boundaries of your property with fences, walls, or other visible markers. This can help prevent encroachments and clarify where your property lines lie.
- Communication: If you become aware of someone using your property, communicate with them in writing to assert your ownership rights and ask them to stop. This establishes a record of your efforts to prevent adverse possession.
- Property Tax Payments: Continuously pay property taxes on time. Failure to pay property taxes can weaken your claim to the property and make it easier for someone else to claim adverse possession.
- No Permission: Do not grant permission for others to use your property in a way that might be construed as allowing them to gain ownership. Any permissive use can weaken your defense against an adverse possession claim.
- Document Everything: Keep records of property surveys, deeds, property tax payments, and any communication with individuals using your property without permission. These records can be crucial evidence if a dispute arises.
- Lease Agreements: If you allow someone to use your property temporarily, create a written lease agreement that explicitly states their lack of ownership rights and specifies the duration of use.
- Regular Use: Continue using your property regularly. Regular, consistent use helps demonstrate your active ownership and can undermine any adverse possession claims.
- Legal Action: If you become aware of a potential adverse possession claim, consult a real estate attorney to discuss your options. Taking legal action early on can help protect your ownership rights.
- Post Warning Signs: If applicable, post signs indicating your property ownership. While not foolproof, this can discourage individuals from attempting adverse possession.
- Negotiation: If you discover someone is using your property without permission, consider negotiating an agreement that reaffirms your ownership while allowing them to use the property under certain conditions.
- Land Use Agreements: If you know someone using your property, you can create a land use agreement outlining their use while reaffirming your ownership. This agreement can help prevent adverse possession claims.
Conclusion
I strongly recommend seeking legal advice from an experienced real estate attorney in California if you have any concerns related to adverse possession. An attorney’s expertise will clarify local laws, the feasibility of your claim, and the potential risks involved.