California Adverse Possession Defined
The legal concept of adverse possession is both simple and complex. It is simple because its essence—the right to take title or ownership to property through continued and uninterrupted occupation by an individual—can be understood and expressed in a few short sentences. On the other hand, it is complex because the statutory and case authority addressing adverse possession in California is extensive and is continually evolving. In fact, adverse possession claims are among the most hotly contested matters in real estate litigation.
A classic definition of adverse possession states that "[a]ttainment of property by adverse possession is based on principles of public policy which favor the orderly disposition of land and the termination of uncertainty caused by long-standing possession in the belief that it was rightful." (Colter v. Farrell (1961) 194 Cal.App.2d 375, 379 (Colter).) It has been further defined as follows: "The doctrine of adverse possession was recognized at common law in England prior to the Norman Conquest, and embodies principles of relative value, human necessity, and public policy… The statutory enactments [governing adverse possession] were designed to remedy ills that had arisen through operation of the common law, and to encourage occupancy of land that otherwise would lie idle or be an unsafe security for debt. . . . Moreover, the law recognizes that a landowner who has failed in protecting and enjoying his estate ought not to profit by his own negligence or inattention to its condition. . . . From all of these considerations arose the maxim ‘ut domum diuturnam possessionem, in praejudicium tanto huic quam illo’, that is, ‘there is as much presumption for a long possession in prejudice of this claimant as of that person.’ " (Bostrom Bros. v. City & County of San Francisco (1958) 163 Cal.App.2d 74 , 79 (Bostrom).)
In California, the statutory basis for adverse possession is found in Civil Code section 1007, which defines adverse possession as possession "under claim of right inconsistent with the claim of another person" coupled with actual, open and notorious occupation and use of the property for at least five years which is either continuous or, if interrupted, was followed by reconciliation within a certain time period. A second requirement is payment of all property taxes levied for the property during the five-year period, but that requirement can be difficult to prove and is sometimes set aside where it can be shown that the owners could not have reasonably paid the tax. (See Jardim v. Badagliacco (2007) 151 Cal.App.4th 311, 316, fn. 2.)
An additional statutory requirement for adverse possession in California is that the possessor claim title to the property in a deed recorded under another part of the same statute. Failure to record such a deed will foreclose enforcement of a claim for adverse possession. (See § 205(7); Garcia v. Rourke (2006) 146 Cal.App.4th 177, 183, fn. 5.) On the other hand, the recording of such a deed will provide the possessor a defense to claims adverse to the possessor’s title to the property. (See §§ 207, 208.)
The majority of adverse possession claims are asserted between neighbors to resolve boundary disputes where the true boundary has been obscured. A typical dispute involves a fence or wall built that is beyond the settlor’s (claimant’s) deeded property line onto the adjoining property. Unless the deed specifies otherwise, the fence line is ultimately deemed the property line. Another very common example of adverse possession involves "holdover" renters who occupy property after the termination of their tenancy.
Adverse Possession Requirements in California
To successfully claim a title to real property through adverse possession in California, four specific requirements must be fulfilled continuously for a five-year statutory period. First, the claimant must actually possess the property. This means that using the land as an ordinary owner would shows actual, not constructive, possession. Trailing animals such as cattle, sheep, or goats are expressly authorized for the required actual continuous possession. Second, said possession must be hostile to the interests of the true owner. This requirement turns on the concept of exclusivity, meaning no other person must have had rights to the property during the statutory period. Third, possession must be open and notorious, which requires the owner to have no knowledge of the adverse claimants. Last, the adverse possessor must pay all property taxes on the parcel in question during the five-year statutory period. This requirement acts not only as an enforcement mechanism but also a method by which the true owner within the statutory period becomes aware of an adverse possession claim on their property.
Relevance of Taxes to California Adverse Possession
One particular obstacle to successful adverse possession found under California law relates to the necessity to pay property taxes. Property taxes must be paid in order for the adverse possessor to ultimately succeed in claiming the land as their own. This is one of the most commonly tripped-up issues in such a claim.
In California, a claim for adverse possession fails if the claimant does not pay property tax for the claimed parcel for five consecutive years. A claim to make a property an adverse possession is often brought by way of cross-complaint, which is filed within the prescribed statute of limitations under CCP § 318 (5 years), and within three years of the adverse possessor’s payment of the property taxes at issue. Caution should be taken, however, as a claim of adverse possession is very factually intensive. That is to say that complete careful attention to all facts and the associated legal research will be required before pursuing a claim for adverse possession.
Obstacles and Defenses
The legal community has long expressed a negative view of adverse possession and the statutory and case-law rules that define it. In modern times, courts more or less presume that a claim of adverse possession is fraudulent unless proven otherwise and tend to strictly construe all the conditions for such title. The main legal challenge for a trespasser is to meet all of the statutory requirements (and persuade a judge) that a valid adverse possession title has been created. The following sections discuss the most important legal challenges and defenses related to adverse possession in California.
The first part is whether the claimant can show that he possessed the land continuously for the required five-year period. Easements obtained through adverse possession require only a shorter term of continuous use, and there is no black-and-white requirement that the claimant occupy the property day in and day out. A gap in use can defeat an adverse possession claim, but it can be relatively short, particularly if the claimant can explain that the gap was caused by circumstances beyond his control. The second half of the continuous-use requirement is that the possession must be reasonably regular and predictable. A claimant may not skip over parts of the property one day and claim them the next. A trespasser must either possess all of the property, or at least a continuous, uninterrupted portion of the property he claims.
The second basic challenge to an adverse possession claim is that the claimant must show improvements to the property. Improvements mean things that cause physical changes to the property or sufficient physical damage to lead the true owner to reasonably believe that the harm was intended. A trespasser does not, however, have to prove that he erected any structural improvements at all for the proper use of land. Fences, posts, trenches, and ditches are all sufficient showing of improvements.
A third challenge to an adverse possession claim is that the claimant’s use of the property must be "open and notorious." Using the same reasoning from the policy considerations above, a trespasser must show that his use was sufficiently obvious that the true owner could discover the use on examination. This requirement is typically proved with circumstantial evidence. It is not necessary that the true owner have actual knowledge of the use. As a defense, the true owner may establish that the claimant did not use the property in a manner of which he reasonably should be aware. The claimant may rebut the owner’s defense with evidence that the owner, with reasonable care, would have discovered the use. For example, the claimant’s use of timber for fuel was noted, but the court found for the owner because he did not look for reasonable signs of timber use.
Although a claimant must satisfy these four elements to establish title by adverse possession, he may lose his title hours after gaining it if someone else has usurped his possession. While the claimant is protected against this eventuality for five years, this may not be enough time for him to take action to secure the land in the event of usurpation. To protect himself, a claimant can request a quitclaim deed for the property and file the deed with a statement of the claim of adverse possession. If the claimant is able to convey title to someone else, it is enough that the new occupant acts as the legal owner of the property by exercising dominion, exercising rights, maintaining and improving the property, and ensuring that the new possession is open, notorious, uninterrupted, and hostile.
Filing Adverse Possession
If someone believes they may qualify for a claim of adverse possession, the first step is to gather the necessary documentation. Individuals must have either paid property taxes for five years or otherwise entitled to encumber the property through a direct grant from the owner for five successive years of possession. Moreover, – in addition to providing evidence of five successive years of open, hostile, and continuous possession – claimants must also show evidence of paying property tax. The claimant must pay all property taxes levied against the property during the five-year period, even if he or she does not own the property. The claimant can prove this by obtaining a tax certificate from the county tax collector. It is important to note that some courts will find this requirement for the payment of taxes to be inapplicable to claims of adverse possession by a state or government agency on behalf of the public.
If an individual believes they meet all the elements of a claim for adverse possession, they must file a lawsuit for quiet title against the true property owner in court. The property owner’s name will appear on the deed to the property, if there is one. If there is no deed, the individual must list as a defendant the owner listed on the last deed that appeared in record for the property before the individual asserted possession. If the last owner of record cannot be determined, the individual will be required to designate the property to be unclaimed by listing "Do Not Know" in lieu of the owner’s name. All other entities with potential interests in the property must also be named as defendants . This may include any parties who may have a lien on the property, such as mortgage lenders, or anyone who has an easement over the property. If the property is owned by a corporation or an entity other than a natural person, the plaintiff would need to include the name of the entity and the name of a person authorized to accept legal service on behalf of the entity. The process begins upon filing the complaint to quiet title and serving it on the property owner. A hearing set with the court clerk and the judge has discretion to issue a judgment in favor of the adverse possessor. If the property cannot be provided or if the court does not issue a judgment in favor of the adverse possessor, the court may order the sheriff to ejected the adverse possessor from the property.
There are no filing fees associated with filing an adverse possession action for quiet title. However, costs can be considerable in the case of an action to quiet title. Assuming the case is set for trial, the claimant must prove his or her case by an affirmative factual showing rather than just a statement of what law the defendant has violated. Legal assistance is generally required since trial preparation includes extensive discovery, legal research, and trial appeal. Although some adverse possession cases settle because the owners are willing to avoid an adverse possession claim and negotiate a rental agreement or some form of damages, there are certainly times when the adverse possessor will prevail at trial. The necessity of having suitable independent legal counsel to assist with a quiet title action is critical in California to ensure a claimant’s adverse possession rights are established properly.
California Adverse Possession Case Results
The case law regarding adverse possession, or a claim of adverse possession, is particularly narrow because the law dictates that the burden of proof is on the adverse possessor to prove its claim by "clear and convincing evidence." See , for example, City of Pasadena v. California-Michigan Land Co. (1919) 179 Cal. 560, 566-568. In this recent case, the appellate court held that specific knowledge of the land being adversely possessed is not required if reliance is placed on arts and roadways for purposes of determining the claim of adverse possession. The reasoning in this decision may facilitate future adverse possession claims where no actual physical occupation or other use of the subject land may have occurred. In Orange County Historic Soc. v. Orange County Cemetery Dist. (2006) 139 Cal.App.4th 622, 625, the recent decision held that the requirement of "hostility", which is one of the elements of an adverse possession claim, does not require that the adverse possessor use the subject land as much as the true owner (or the public in this case) would have if the occupier had not done so in an exclusive manner. Although cases interpreting adverse possession claims have usually held that a trespasser on land has to exclude the owner in order to establish that element of the claim, recent cases hold that exclusive possession of land is not limited to physical use. In other words, some courts are allowing adversely possessed lands to be acquired without an adverse possessor stepping foot on the land being claimed. This seems to weaken traditional notions of what constitutes an adverse possession claim. Similarly, the element of "open and notorious" adverse possession may be deemed to exist by some courts in circumstances where there may have been no physical use or presence on the land being claimed by the occupant.
Tips for the Adverse Possessor
1. Tolerance is Key
One of the most important aspects of a successful adverse possession claim is tolerance. If a landowner discovers that another individual is cultivating, improving or possessing their land (whether by construction, removal of trees, building of fences or otherwise) the original owner must then tolerate the use of the property for five years in order for title to the property to be obtained by the other individual. If the landowner does anything to stop this use, such as building a fence or putting up a no trespassing sign, the tolerance period is reset. In other words, use is permitted for five years only if there is no action by the original owner to preclude its continuance. Thus, if you see someone using or encroaching on your property you need to stop them in order to avoid inadvertent abandonment of their prior claim.
2. Tax Records are Crucial
As noted above, there are four elements to a successful adverse possession claim: possession must be open and notorious, continuous for five years, hostile and under a claim of right or color of title, and matured through payment of property taxes. The last element, payment of property taxes, is arguably the most difficult hurdle to overcome. Due to the fact that some individuals are able to acquire title to property without paying taxes, many other individuals have also acquired "title" to lots through adverse possession. The only way to know whether someone else has acquired title to your lot through adverse possession is to check the property tax records, which are publically available . If the neighbor is not paying taxes on the property, they better be prepared to prove how they acquired title and/or that they meet the elements. If the neighbor is paying taxes on the property, however, it is more difficult to beat an adverse possession claim.
3. Do Not Attempt to Take Possession of a Lot Without Legal Counsel
Taking possession of a lot requires much more than putting up a no trespassing sign or removing a single tree. Typically, as mentioned above, fencing is required to demonstrate use. There are other factors for a successful adverse possession claim including cultivation, improvement, maintenance, and construction of fixtures. The law enables the trespasser to claim what they have possessed, maintained, improved or constructed – not the entire lot. Thus, for example, if someone has put a six foot fence on a lot and cultivated the uncovered portion for five years, collected water from the roof and put in driveway of the property, they would be limited to claiming only what is within the boundaries of the fence and perhaps a portion of the space next to it. The more areas that are fenced, the more areas they would possess. In order to avoid the confounding aspects of an adverse possession claim, individuals who are attempting to take possession of a lot by adverse possession should engage legal counsel up front. They should also investigate property records to determine the boundaries of the lot they are attempting to possess. If they can properly show up at the lot to inspect the boundaries, they might be able to mitigate their damages moving forward.