Adverse possession

Vacant properties are a lure for aspiring adverse possessors. This method by which property can be “stolen” is known as adverse possession.

Adverse possession exists for two primary reasons:

• to encourage full use of land; and
• to eliminate conflicts in title after a prescribed time period has passed.

While it is possible to “steal” the rights of ownership to real estate, very specific requirements must be fulfilled in order to do so successfully. That is, if the would-be adverse possessor is not first caught trespassing and ejected.

 

Adverse possession criteria

Perfecting ownership by an adverse possession claim requires:

• a color of title or claim of right to title;
• actual, notorious and open possession;
• hostile, adverse and exclusive use;
• continuous and uninterrupted possession for five years; and
• payment of current and delinquent real estate taxes and assessments. [Gilardi v. Hallam (1981) 30 C3d 317]

Color of title or claim of right

Two distinct types of adverse possession claims exist:

• color of title, which is a claim of ownership based on a (typically defective and unenforceable) written instrument [Calif. Code of Civil Procedure §322]; and
• claim of right, which is a claim of ownership made without any documentation, except possession and payment of taxes. [CCP §324]

Actual, notorious and open possession

• Adverse possessors must show they have been in actual possession of the property to which they are claiming ownership. They must demonstrate actual possession of the property by:¦surrounding the property with a substantial, protective enclosure;
• cultivating the property; or
• improving the property. [CCP §325]

Aditionally, the owner of the property against which the adverse possession claim is made must be on notice of the adverse possession. This notice may be either:

• actual, meaning the owner is personally aware of the  occupancy or claim against his land; or
• constructive, meaning a reasonable person would know the adverse possessor  appears to hold some interest in the property due to their occupancy. [Myran v. Smith (1931) 117 CA 355]

Hostile and adverse use

Hostile and adverse use is established when:

• a document exists, purporting to vest title in the adverse possessor in conflict with the true title; or
• the adverse possessor uses the property without permission or consent from the legal owner.

Exclusive, continuous and uninterrupted use
To perfect any adverse possession claim, use of the property must be exclusive. If another person concurrently or intermittently uses the property without the consent of the adverse possessor, the adverse possession claim will be defeated. [Laubisch v. Roberdo (1954) 43 C2d 702]

However, the occasional use of the property by the public (i.e., for recreational activities, as a right of way, etc.) will not affect an adverse possession claim. [Webber v. Clarke (1887) 74 C 11]

The adverse possessor must also occupy the property continuously for at least five years in order to acquire title through adverse possession. [CCP §325]

The continuous possession under a claim of right must encompass a constant, definable portion of the property. A claim-of-right possessor who uses different portions of a property at different times for a total of five years will not satisfy the continuity requirement. [Zimmer v. Dykstra (1974) 39 CA3d 422]

However, exceptions to the continuous possession requirement exist, including:

• vacancies between tenants of rental property [Montgomery & Mullen Lumber Co. v. Quimby (1912) 164 C 250];
• vacancies of homes built on subdivided property and not immediately sold [Blume v. MacGregor (1944) 64 CA2d 244]; and
• off-season vacancies of property used for agriculture or grazing. [Park v. Powers (1935) 2 C2d 590]

Payment of taxes

An adverse possessor must prove they have paid the property taxes during each year of the five-year qualifying occupation by providing a certified record of tax payments from the county tax collector. [CCP §325]

 

Additionally, they must pay any back taxes owed on the property when they took possession. [City of Los Angeles v. Coffey (1966) 243 CA2d 121]

Take-home message?  Mind your properties. Squatters and aspiring adverse possessors are constantly scoping vacant and abandoned properties for their own gain.

Common properties targeted by adverse possessors include:

• portions of a property that a neighbor is using unbeknownst to the owner (that vacant lot behind your property may be yours!); and
• rural properties held for future use by the owner.

A maintained property is less likely to be stolen through adverse possession. To protect yourself against adverse possession:

• visually inspect your property at least once a year;
• look for changes in your property’s appearance for clues of unauthorized activity; and
• make sure YOU are paying YOUR property taxes instead of unwittingly allowing an adverse possessor to foot the bill.

Protect your real estate, and don’t become a victim to “legal thievery.”