Adverse possession is the process of acquiring legal title and ownership to a property by continuous possession for a prescribed period of time. It occurs when someone takes possession of another person’s property without their permission and meets certain legal requirements.
In California, for a person to claim adverse possession, they must demonstrate that they have been in continuous and exclusive possession of the property for at least five years, openly and notoriously, and under a claim of right or with the belief that they have the legal right to possess the property. Additionally, the possession must be hostile or adverse to the true owner’s interest in the property, and the true owner must have been aware of the possession or should have been aware of it. Moreover, the adverse possessor must pay the real property taxes for a period of five years and pay them on time in the year that the property taxes are due. If these requirements are met, the person in possession can potentially acquire legal ownership of the property through adverse possession, subject to certain exceptions and defenses. It’s important to consult with a qualified real estate attorney if you are facing a potential adverse possession claim or have questions about your property rights.
Preventing adverse possession involves proactive measures by the property owner. Regularly inspect and maintain your property, including any vacant land. If you notice any unauthorized use or encroachment, take immediate action to remove trespassers or resolve boundary disputes. Posting “No Trespassing” signs and erecting fences can help deter potential adverse possessors. Additionally, ensure that property taxes are paid on time, as an adverse possessor must pay these taxes to fulfill their claim. If you lease your property, have clear, written agreements to clarify the tenant’s rights and boundaries. Likewise, you can also post “right to pass by permission” signs under Civil Code section 1008. These signs give permission so as to defeat the hostile element or the “without permission” element of an adverse possession claim.
One way to easily conceptualize adverse possession claims is to think of them as a societal penalty for someone who fails to look after their own property and pay the taxes. You can prevent that by actively looking after your property, paying your taxes on time and not letting it just sit idle quasi abandoned.
In order to establish a title through adverse possession, all of the following five requirements must be satisfied:
I. Claim of Right or Color of Title: Possession must be held under either a claim of right or color of title. The adverse possessor must either:
II. Actual, Open, and Notorious: There must be “actual, open and notorious” occupation of the premises in such a manner that constitutes reasonable notice to the record owner. As one court put it back in 1890, the adverse possessor “must unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest.”
III. Hostile: Occupation must be both exclusive and hostile to the title of the true owner. This is thankfully not an invitation for the adverse claimants to engage in a boxing match! To qualify as “hostile and exclusive”, the occupation must be not have permission from the owner of the property, and must not recognize any of the property owner’s rights. Controlling the land and renting it to others can satisfy this element.
IV. Continuous Possession: There must be uninterrupted and continuous possession for at least five years. Once the adverse possessor invades the property, the clock begins ticking on the five year requirement. If the true owner resumes possession, records notice, or files an action to quiet title, the clock is stopped.
V. Pay All Taxes Levied: The possessor must pay all taxes levied and assessed on the property during the five year period in the year the taxes become due. Many aggressive adverse possessors mistakenly think they can just come in and pay the back taxes on a property for a period of 5 years, but that does not work. The adverse possessor must pay the taxes in the year they are assessed, they cannot just go in and pay the back taxes.
Anyone who meets the legal requirements can potentially claim adverse possession, including neighbors, strangers, tenants, or even squatters. The key is that the claimant must possess the property in a manner that is open, notorious, continuous, hostile, and exclusive. The claimant must also believe they have the right to occupy the property, either under a claim of right or color of title, and must pay all property taxes for the required period. We have represented all sorts of people with their adverse possession claims ranging from neighbors, strangers, co-tenants and even former friends.
In California, the period required for adverse possession is five years. However, this period varies by state. For instance, in Texas, the period can be as short as three years if the claimant has color of title, or up to ten years without it. In New York, the period is ten years, while in Florida, it is seven years. Each state has its own specific requirements and conditions that must be met for a successful adverse possession claim.
ALSO READ How To Establish Adverse Possession - Court Case AnalysisWhen a trespasser proves their claim to adverse possession, they can gain legal title to the property. The court may issue a judgment recognizing the adverse possessor as the new legal owner. This judgment must then be recorded in the public records to update the title. The previous owner loses their rights to the property, and the adverse possessor becomes the lawful owner, subject to any existing liens or encumbrances on the property. Oftentimes, however, the perfection of an adverse possession claim is like a tree falling in the woods – nobody knows about it until action is needed. The only way to perfect the adverse possessor’s title claim is to bring a quiet title action in court to change title to their name. Such a claim can be brought at any time after the prescriptive period is met and for whatever prescriptive period – 5 year period – is relevant. For example, our firm brought a claim for one of its clients in 2010 where we provided our client had acquired full title by adverse possession as of 1992.
Adverse possession and prescriptive easements are similar in that both involve the use of another’s property without permission, but they differ in significant ways. Adverse possession results in the acquisition of title to the property, while a prescriptive easement only grants the right to use the property for a specific purpose. For example, if a person continuously uses a path across their neighbor’s land for the statutory period, they may gain a prescriptive easement to use that path, but they do not own the land itself. In contrast, if someone occupies a piece of land openly and continuously for the required period, they could potentially gain ownership through adverse possession.
If you experience trespassers on your property, it is important to act quickly. Begin by asking the trespassers to leave and clearly marking your property boundaries with signs or fences. Document any unauthorized use and take photos as evidence. If the trespassers do not leave voluntarily, you may need to file a lawsuit for trespass or a quiet title action to assert your ownership rights. You must take action within 5 years. After 5 years the time to bring a trespass claim expires and the flip side of the claim (adverse possession) ripens for the trespasser. Consulting with a real estate attorney can help you understand your legal options and take the necessary steps to protect your property.
Once the five elements of adverse possession have been satisfied, it is important that the adverse possessor perfect their title by filing an action for quiet title and having their title recorded. Until the title appears in public records, the prior owner or his successor in interest can file a quiet title action to establish title against any and all adverse possessors.
ALSO READ Adverse Possession Against an EstateAre you a property owner in the biggest city in the country? It’s possible that someone, such as a neighbor, stranger, trespasser, or tenant, could take your land through adverse possession. It is important to know your rights when someone encroaches on your property. Schorr Law can assist in preventing an interested party from trying to obtain ownership of your property. It is not uncommon for property owners to be unsure about their property rights. You might not think that someone would try to legally steal your land, but adverse possession can occur when someone takes possession of your property and remains there for a specified period of time, eventually making a legal claim for ownership in court. Our attorneys can help analyze or litigate your potential adverse possession claim. To schedule a consultation, you can call us directly at (310) 954-1877, or you can fill out our contact form here.
We have successfully taken adverse possession to trial and won! We know the ins and outs and how our experience with adverse possession also relates to prescriptive easement claims.
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