What is adverse possession?
How do you establish it?
1. Possession must be held under either a claim of right or color of title. The adverse possessor must either: (1) have a defective document which tries (but fails) to transfer title of the property to the possessor (“color of title”), or (2) the possessor must actually occupy the property with the intent to claim the title to the property (“claim of right”). It is not enough to just be on the land; you have to show that you intend to make the property your own.
2. 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.”
3. 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. The adverse possessor must be the only person to use the property during the required time period.
4. 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.
5. The possessor must pay all taxes levied and assessed on the property during the five year period. An adverse possessor can add her name to the tax assessment roll for the property by filing a declaration with the county assessor. If she does not, she must ensure that she pays all taxes before they are paid by the true owner, otherwise this element has not been satisfied.
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.
Our adverse possession attorneys at Schorr Law can help analyze or litigate your potential adverse possession claim. To schedule a consultation, you can call us at 310 954 1877, email at email@example.com, or you can fill out our contact form on the side of the page. 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.
By Katy Cummings, Schorr Law real estate attorney.
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