Adverse possession is an old legal concept recognized in all the states, in one way or another, and it allows someone to take ownership of property belonging to someone else as long as certain criteria are met. In California, adverse possession is a legitimate means for obtaining title to property, but only private property. Property owned by the state or federal government cannot be taken by adverse possession.
TL;DR (Too Long; Didn't Read)
The California adverse possession statute requires continuous, open, notorious, hostile, exclusive and uninterrupted occupation of someone else's property for at least five years, as well as payment of all taxes assessed against the property during that time.
What Is Adverse Possession?
Adverse possession occurs when someone trespasses on someone else's property in such a way and for such a time period that the trespasser can then go to court and make the property legally his. The concept behind the doctrine of adverse possession is that a non-owner who is making good use of the land is better than a property owner who neglects the land.
Although it seems unjust, title by adverse possession is typically difficult to obtain, and the trespasser must prove several elements before she can obtain legal title. Every state has adverse possession laws, and they all require that a trespasser meet stringent requirements.
Adverse Possession Throughout the United States
Most states require a trespasser to prove certain conditions occurred before giving the trespasser legal title by adverse possession. These conditions include:
- That possession was open and notorious. This means the trespasser was not making efforts to hide his presence on the property or live there in secret.
- That possession was exclusive. The trespasser cannot have shared the property with the public or with the owner.
- That possession was hostile to the rights of the true owner. If the true owner gave the trespasser permission to use the property, the possession was not hostile.
- That possession was continuous and uninterrupted for a certain period of time. Each state has its own laws about the amount of time necessary, but all states require that the possession by the trespasser be continuous and uninterrupted for the entire period. That is, all elements of adverse possession were present for the entire time.
California Adverse Possession Laws
California's adverse possession laws specifically require that:
- Possession is held under either a claim of right or color of title.
- The occupation is so actual, open and notorious that the record owner is under reasonable notice of the occupation.
- The uninterrupted and continuous possession occurs for at least five years.
- The trespasser pays all taxes levied and assessed against the property during the five-year period.
California law prohibits taking government property by adverse possession. Land owned by the state or federal government or by a local government is off limits to adverse possessors. This includes property owned by public entities and public utilities.
Claim of Right or Color of Title
The first element of adverse possession in California is possession under claim of right or color of title. Occupation under "claim of right" means that the trespasser enters and occupies the property with the intent of taking ownership of it, while occupation under "color of title" means that the trespasser has a document that purports to give her ownership of the property but the document is defective and does not actually grant her title.
An example of claim of right is if John knows of a plot of land that is overgrown and has been left for years by its owner. John decides that he wants the land and enters the land intending to acquire ownership of the property by adverse possession. He is operating under a claim of right.
An example of color of title is if Jane's aunt has deeded her a parcel of property, but her aunt did not actually own the property and it was not hers to give. Regardless, Jane enters the property and begins to use it. She is operating under color of title.
Actual, Open and Notorious Occupation
Actual, open and notorious occupation is the next requirement for adverse possession in California. The trespasser who seeks adverse possession must actually occupy the property and must do so in an open and notorious way. This may mean erecting structures, fences, swimming pools or other obvious evidence of occupation and using the property regularly and continuously for the statutory period.
For instance, if John has entered property under claim of title and builds a house for himself with a driveway and a mailbox and a fence, he has engaged in actual, open and notorious occupation because he is living on the property and not hiding that fact from anyone. Although the owner is unaware of John's occupation of the land, the owner could easily discover the occupation by simply driving by – and that is sufficient under the law.
Exclusive and Hostile Occupation
Exclusive occupation means that the adverse possessor is the only one using the property during the statutory period, and hostile occupation means that the adverse possessor does not have the record owner's permission to be there.
Using John's example, if John enters the property under claim of right and builds a house, he can only have adverse possession if he is the sole user of property. He also cannot be on the property at the owner's invitation, nor can he recognize the true owner's rights to the property.
Uninterrupted and Continuous Possession for at Least Five Years
The California adverse possession statute of limitations is five years, and occupation by the adverse possessor must be uninterrupted and continuous for that time period. If the trespasser moves onto the property and then moves off three years in, the possession has stopped. If the owner finds out about the trespasser and takes action before the end of the five years, the possession has stopped.
If John lives in his new house for three years and the owner suddenly notices that someone has built a house on the land, and the owner retakes possession or files a court action to get rid of John, his occupation is no longer uninterrupted.
Payment of Property Taxes
California law requires an adverse possessor to pay the property taxes associated with the property during the statutory period before title by adverse possession may be awarded. As of 2019, this is true only of property taxes the true owner was required to pay. The California appellate division ruled in Hagman v. Meher-Mount Corp., 215 Cal. App. 4th 82 (Ca. App. 2013) that a trespasser achieved adverse possession of land owned by a tax-exempt entity despite not paying property taxes because the record owner's tax-exempt status meant no taxes were assessed against it. Therefore, there were no taxes for the trespasser to pay.
Obtaining Title by Adverse Possession
A person occupying land adversely must take steps to obtain actual title to the land once the adverse possession period has passed. In California, the appropriate process is an action to quiet title. The adverse possessor must file suit against the true owner in the California Superior Court for the county where the property is situated and then file a notice of pending action with the county recorder. The lawsuit must be properly served upon the record owner, and the adverse possessor must prove that she has met all the elements by clear and convincing evidence. If the court rules in her favor, it will enter a judgment that the property belongs to her.
Read More: Squatter's Rights in California
- Brewer Offord & Pedersen LLP: Adverse Possession Awarded Without Paying Taxes
- Stimmel, Stimmel & Smith P.C.: Adverse Possession - How to Acquire Land Without Buying It
- Justia: Adverse Possession
- Point of Beginning: Unmistakable Marks: Making Adverse Claims Against The State
- Schorr Law: Adverse Possession: An Overview
- Eugene E. Kinsey, Attorney at Law: Quiet Title Actions in California
- FindLaw: California Adverse Possession Laws
- Legal Beagle: Squatter's Rights in California
- Legal Beagle: California Property Crimes: Homestead, Real Estate, and Security Deposits
- Legal Beagle: California Trespass Law: Criminal Trespassing, Charges and Penalties
- Legal Beagle: Difference Between Trespassing & Criminal Trespassing
- Legal Beagle: How to Look Up a Pending Lawsuit
- Legal Beagle: What Is the Difference Between a Deed & a Title?
Rebecca K. McDowell is a creditors' rights attorney with a special focus on bankruptcy and insolvency. She has a B.A. in English from Albion College and a J.D. from Wayne State University Law School. She has written legal articles for Nolo and the Bankruptcy Site.