Should Homeowners Worry About Adverse Possession in California?

California Adverse Possession Laws

As a real estate fraud lawyer, some of my homeowner clients ask me if fraudsters can steal homes and other property by adverse possession in California.

The short answer is, No, fraudsters would not use adverse possession to steal homes, home title, or home equity in California. It is not easy to acquire title this way. To obtain title by adverse possession, a person must satisfy 5 requirements, one of which is that the person who wants to claim title must actually occupy the property in an “open and notorious” way for 5 years so that the true owner has notice of the adverse possession. In contrast, criminals try to commit crimes quickly and without drawing anybody’s attention. Furthermore, con artists have far simpler methods to commit home title theft, which should be far more worrisome to homeowners, and which you can learn about in my video blog here: https://youtu.be/spTTdF_gjrg.

Does California Recognize Adverse Possession

California has recognized adverse possession since it became a state in 1850, and by 1872, it had passed legislation about adverse possession, which can currently be found in the California Civil Code Sections 325 and 1007. Unfortunately, these statutes do not explain the law of adverse possession in California very clearly, and as is often the situation, the true state of the law is a combination of the statutes and case law created by court rulings. In fact, California courts had to step in to help define adverse possession from the very beginning.

Even in the first year of statehood, when property ownership records were not as reliable as they are today, the Supreme Court of California decided the case of Sunol et al v. Hepburn et al, in which the plaintiff Sunol claimed he had received title of Rancho de los Coches (in the area that is now San Jose) in 1847 from an “emancipated” Native American, named Roberto, as payment of a debt. (Those were very different times.) The court decided that Roberto did not have the authority to sell the property, which meant that Sunol’s deed was ineffective, and he tried to assert the fledgling concept of adverse possession. Ultimately, the court denied Sunol’s claim of adverse possession because he could not prove actual possession of the entire property. (Click this hyperlink to read the complete opinion in the Sunol case at vLex: Your World of Legal Intelligence.)

How Does a Person Claim a Property by Adverse Possession?

As recently as April 2018, in the case of Hansen v. Sandridge Partners, a California court highlighted the 5 requirements of a person who tries to claim title through adverse possession. To establish title this way, a person must prove all of the following:

They have actual and continuous possession of the property by “claim of right or color of title.” “Color of title” means they have a deed, but it turns out to be legally defective for some reason, like Sunol’s deed described above. A trespasser who is willing to defend the property against others but has no legal claim will assert a “claim of right.” To do so the trespasser must enclose, cultivate or improve the property.
They are displaying “open and notorious possession” of the property to the extent that the true owner is on notice that somebody is occupying their land.
Their claim on the property is exclusive and adverse to the true owner’s claim. “Adverse” simply means that the true owner did not give them permission to be on the property; they are trespassers. Further, if the true owner and others continue to use the property, then there can be no claim of adverse possession.
They have occupied the property continuously for at least 5 years.
They paid all the property taxes during the five-year period.

(Click this hyperlink to read the complete opinion in the Hansen case at Justia.) Once the adverse possessor satisfies these 5 requirements, if they ever want to sell or mortgage the property, they will first have to file a lawsuit to quiet title in their name. I will discuss quiet title actions in another blog.

Why is Adverse Possession Rare in California?

Adverse possession applies primarily to circumstances in which the owner truly has abandoned the property. As you can see from the requirements described above, the adverse possessor cannot do this secretively. They cannot hide their intentions. Their actions need to be so “open and notorious” that it puts the true owner on notice of their unauthorized use of the property, and this has to continue for at least 5 years. In almost all cases, the true owner would see what’s going on and eject the adverse possessor from the land.

Adverse possession is so uncommon that in my two-decade practice as a real estate fraud lawyer, I have only heard of one case in which a family successfully obtained title to property by adverse possession, and – frankly – I only heard about this situation “through the grapevine” so some of the details might be incorrect. There was an undeveloped lot next to the family home, and for decades, the family treated the lot as an extension of their own property. While they did not build any structures on the lot, they did develop an extensive network of dirt bike trails and terrain, on which the kids regularly rode. Throughout the years, the family never saw the true owner, and the true owner didn’t make any improvements or changes to the property. One day, the family learned that the lot was up for auction by the county because the taxes had not been paid in 5 years, so the family traveled to the tax assessor’s office, paid the back taxes, and took possession of the lot.

3 Simple Rules to Avoid Adverse Possession in California

In California, property owners can easily protect their properties from adverse possession.

Rule #1: Don’t abandon your property. It sounds like a joke, but if you own property, pay attention to it. If people want to use your property, charge them rent.
Rule #2: Pay your property taxes. If you pay taxes on the property, even if other people are using your property in an “open and notorious” way, there is no legal way for them to claim title to your property by adverse possession.
Rule #3: Keep people off your property. If you see people using your property as if it is their own, consult a lawyer and take appropriate steps to eject them.

Avoid Adverse Possession

Final thoughts about Adverse Possession if you own a home in California.

The vast majority of homeowners and other property owners in California should not worry about adverse possession because a con artist cannot use it easily to steal homes, home title or home equity. Under California adverse possession laws, the process takes at least 5 years and for the adverse possessor to successfully acquire title to the property, and the true owner had to be on notice that it was happening while it was happening. Fraudsters don’t want anybody to discover their crime until long after they have covered their tracks. Criminals who want to steal home titles and home equity use far simpler schemes that I will discuss in 5 video blogs, beginning with this one: https://youtu.be/spTTdF_gjrg.