California Adverse Possession of Property Laws
Adverse possession is a common law doctrine intended to reward productive use of land. Under this legal theory, a person with no true legal claim to land could nevertheless become the legal owner through continuous possession and use of the property. Though ancient in its origins, today adverse possession is codified into the laws of each state. In California, the laws on adverse possession can be found in the Code of Civil Procedure.
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Common Law Elements
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Under basic common law principles, adverse possession requires actual, open, notorious, exclusive, hostile, continuous and uninterrupted possession of property under cover of claim or right. In essence this means that a person must actually occupy property in a public, nonsecretive way that is not based on the consent of the owner, but as if he were the lawful owner. Further, the actual possession must be exclusive of other lawful use and uninterrupted for 20 years or a period prescribed by statute. Until all the requirements of adverse possession are satisfied, the adverse possessor is a trespasser.
Improvement
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Under California Code of Civil Procedure section 325, the adverse possessor must cultivate or improve the property, and the property must be protected by a substantial enclosure. These statutory requirements fit the common law elements of actual and hostile possession. By cultivating or improving the land, the adverse possessor is acting as the owner of the property in a way that is contrary to the lawful owner's rights.
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Property Taxes
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The California Code of Civil Procedure also requires that to successfully perfect a claim of ownership by adverse possession, the adverse possessor must pay the property tax for five consecutive years. This satisfies the common law elements of public, continuous and uninterrupted possession under cover of claim or right. The payment of the property taxes becomes a matter of public record and is the basis for a claim of right to the property. The five year statutory period establishes the duration of possession required to perfect the adverse possession claim.
Defenses
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California's laws make it difficult for an adverse possessor to perfect a legitimate claim to property without the lawful owner becoming aware of the trespass. Nevertheless, to defend against the risk of adverse possession a property owner should regularly inspect the property. If there is a trespasser attempting to take adverse possession, entering into a rental agreement or giving written permission to use the land defeats the hostile element of an adverse possession claim. And, of course, paying the property taxes prevents anyone else from doing so as required by law.
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References
Resources
- Photo Credit posted-no trespassing-keep out sign image by bawinner from Fotolia.com
