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ADVERSE
POSSESSION: OBTAINING PROPERTY WITHOUT BUYING IT
Introduction:
Historically,
there has been an effort in Anglo Saxon law to require people to utilize
land and improve it. While perhaps politically incorrect in this era of
environmental protection, the theory of the past thousand years of law
was to avoid the bane of absentee landowners who owned but did not
economically exploit the land thus left it lying vacant and
“useless.” One need
only think of the Lords enjoying the pleasures of the cities while their
land lay fallow in a starving countryside despite small landowners who
were desperate for land, to understand how the concept of “adverse
possession” was seen as an effort to equalize ownership of land in
ages past.
The
United States took the concept from England and thousands of cases later,
it is a settled and statutory part of the law in every State with the
possible exception of Louisiana. Essentially, if one occupies
someone else’s land without legal objection from that person for a
specified period of time, and does so openly and under a claim of
exclusive possession, one can end up owning that land despite later
protests and, indeed, lawsuits, of the title holder. You get the land by
being there.
But
the law is more complex than that and this Article shall describe the
basic law so that both owners…and those seeking to oust
owners…can understand the procedures and rules that apply to adverse
possession in California.
STATUTORY
BASIS OF ADVERSE POSSESSION:
The key to adverse possession is “open and notorious” possession of
property without the title holder taking steps to remove you for a
stated period of time. In California, the Legislature has passed precise
criteria for what must be done in order to have a claim of adverse
possession and the law is found in the Code of Civil Procedure at Section 325 and is
quoted in full below (as of May, 2003.)
§ 325.
Adverse possession; claim of title
not founded upon written instrument, etc.; occupancy of land
For the purpose of constituting an adverse possession by a
person claiming title, not founded upon a written instrument, judgment,
or decree, land is deemed to have been possessed and occupied in the
following cases only:
First--Where it has been protected by a
substantial enclosure.
Second--Where it has been usually cultivated or
improved.
Provided, however, that in no case
shall adverse possession be considered established under the provisions
of any section or sections of this Code, unless it shall be shown that
the land has been occupied and claimed for the period of five years
continuously, and the party or persons, their predecessors and grantors,
have paid all the taxes, State, county, or municipal, which have been levied
and assessed upon such land.
Each
criteria above is essential. You have to mark off the property in some
obvious way to show the area you are claiming; you have to use or improve
the property; you have to pay taxes on it and have done so for a minimum
of five years. There is some authority that payment of taxes can be accomplished at the end of the five years but it is safer to do annually.
Many
authorities indicate that one should view adverse possession not so much
as the possessor taking legal action to seize land as the title owner
FAILING to take legal action for a stated period of time despite what
should be obvious notice that the adverse possessor is seizing the
property. In that view, adverse possession is really a form of statute of
limitations in which a plaintiff is barred from taking legal action
against an alleged wrong doer because the plaintiff waited too long. In
this case, the title holder fails to take action for five years of
obvious breach of his or her right to title on the property and the
adverse possessor can no longer be the defendant for trespass or related causes of action.
THE
CASES
As
one of the oldest forms of land disputes, there are thousands of cases
dealing with adverse possession in almost every jurisdiction of Anglo
Saxon law. Most of the cases deal with the factual question as to what
action constitutes defacto notice to the title holder that adverse
possession is being claimed. (Typical situations: a fence is built but
three years later is half demolished; the adverse possessor only
occasionally visits the property; the title holder showed up once a year
and the adverse possessor was away at work and the fence not in repair,
etc, etc.)
It
is a question of fact for the trier of fact to determine if the criteria
above were met and were met for the full five years or longer. Thus the average trial centers around
proof that the criteria was met, with the title holder bringing in
witnesses to claim that the possession was not continuous or obvious and
the adverse possessor doing the opposite.
The
law requires the adverse possessor to prove such criteria were met AND
THE PRESUMPTIONS ARE AGAINST THE ADVERSE POSSESSOR. If witnesses have
died or pictures have disappeared, the Court will presume that the title
holder would win. The leading case on that topic held:
Defendants asserted prejudice due to the intervening deaths
of three likely witnesses. But all presumptions favor the record owner of
the property, and all doubts are resolved against the adverse possessor,
so that any prejudice caused by the loss of these witnesses' testimony
would work against plaintiff, not defendants. (26 C.A.4th 192, 193.)
If
you are considering claiming adverse possession, it is thus vital to move
quickly so you can prove your case before the witnesses disappear. But
you do not have to bring a case: it is up to the title holder to force you
out, not vise versa, once you claim such possession.
Again,
the cases are clear on the right of the adverse possessor not to bring
action but to let time pass hoping that the title holder will continue to
ignore the possession. "California law does not
require a plaintiff to bring an action to perfect his or her claim of adverse
possession. Rather, it is the record owner--not the intruder--who
must bring an action within five years after adverse possession
commences in order to recover the property." (26 C.A.4th 191, citing
C.C.P. 318,
text, § 114.) Hence, plaintiff was under no obligation to bring an action
to perfect her adverse possession claim. It was irrelevant that
she allegedly acquired her title many years ago, and that she had not
asserted the claim in an earlier action she filed involving the same
parcels. (26 C.A.4th 192.)
The danger is that after the five years is up, but after the
witnesses have disappeared, the defendant will face a claim by plaintiff
that less than five years has passed with open possession…but not
be able to win since so much time has passed that no witnesses exist.
Note that all real property taxes have to be paid by the party claiming adverse possession for the full five years. However, where tax on land adversely possessed is allowed to become delinquent but redemption of past due taxes is made in good faith by the adverse possessor while in undisturbed possession, such redemption operates as payment of taxes. (Nord v. McIlroy (1961) 296 F2d.12; Kohler v. Bristow (1955) 131 Cal. App. 2d 692.) This failure to pay taxes could be dangerous to the adverse possessor since if a third party pays them instead during the delinquent period, it is likely the adverse possessor will fail in his or her claim.
Each individual considering the particular situation must
carefully analyze the facts and perhaps obtain useful evidence of
possession even before the five years is past. One client of this office
who was hoping to obtain adverse possession of his polluting neighbor’s
lot took pictures of the property with his improvements annually (a
newspaper with a date clearly visible in the picture) to establish such
possession. Another client, this time a title holder, was able to
invalidate such possession by having a picture, taken by chance, which
showed the uninhabited property with an automobile with a license plate
with a date on it during the period supposedly claimed by the adverse
possessor.
Some examples of the problems inherent in claiming ownership via adverse possession are illustrated in Getting the Land for Free Was Not Free and Adverse Possession and Glory.
WHAT
TITLE DO YOU GET?
Unlike
when you buy property and get a title insurance policy showing
uninterrupted sales to the current holder, adverse possession creates a
new beginning: in effect, you are starting title all over again. The
reader is advised to read our article
Real Estate Ownership and Transactions in the United
States.
Adverse possession is a means of acquiring title to property, after
lapse of time, by continued possession. (See C.C. 1007; see 7 Powell § 1012; 3 Am.Jur.2d, Adverse Possession § 1
et seq.; 1 Ogden § 4.6 et seq.; 3 Miller & Starr § 19:1 et seq.; 1959
A.S. 480; 1963 A.S. 511; 1964 A.S. 559; 1967 A.S. 450; 18 A.L.R.3d 678 [adverse
possession by government]; 1 P. of F., Adverse Possession,
Proof 1 et seq.; 39 P. of F.2d 261.)
The
title so acquired is absolute. (C.C. 1007.) It is a new title,
founded on the disseizin, and not the old estate of the former owner,
although it is of the same nature and extent. (Williams v. Sutton
(1872) 43 C. 65, 7.
Adverse
possession
differs from prescription, which relates to acquiring a right
(such as an easement) after lapse of time, by use. (See Thomas v.
England (1866) 71 C. 456, 458, 12 P. 491; Cleary v. Trimble (1964) 229 C.A.2d 1, 6, 39 C.R. 776,
citing the text; 7 Cal. L. Rev. 65; 3 Cal. L. Rev. 415; 7 Powell § 1012; infra, § 462.) The Property
Restatement (§ 221) uses the term statutory period to mean the time
stated for the acquisition of an estate in land by adverse
possession, and period of prescription as the time for acquiring easements and profits by
prescription.
PRACTICALITIES
If you own property it is vital for you to visit same every
few years and take enough time and trouble to make sure that no one is
seeking to claim adverse possession. You should bring a camera with you,
take pictures to show its unimproved and unoccupied state, etc, etc.
Be practical. Try to determine if there
is something wrong with the property that may make it a liability rather
than an asset. There may be a very good reason it is not being used. See
our true
story
on that topic.
Most adverse possession stems from adjoining property
holders who simply move their fences and use over to take over your plot.
While squatters can occur and used to be the main source of adverse
possession when the West was largely uninhabited, such claims now
normally stem from differences over boundary lines which result in one
claimant simply beginning to use in an obvious manner (and pay taxes) on
the adjacent lot and if five years passes, the dispute is over since
adverse possession has occurred.
If someone is paying your taxes you have problems. If you do
not know your own boundaries and see someone apparently on your land, you
have problems.
And this is not a problem that goes away. You must take
immediate aggressive action and call your attorney to take appropriate
steps immediately. Remember, it is not the value of the land that is a
factor but its use. If you have a million dollar lot it can be
“possessed” as easily as a fifty dollar lot. Use it…or face losing it. Above
all, protect it or you can lose it entirely in five years.
Other states have different periods and criteria for adverse
possession. The above article applies to California only.
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