What You Need to Know About Adverse Possession

Adverse possession, sometimes called squatter’s rights or squatter’s law, is probably the most contentious way to acquire title to real estate. It has existed in some form or another for thousands of years, going back at least to the time of ancient Rome, eventually arriving in the United States as part of the English common law tradition.

It amounts to a kind of “hostile takeover” of someone else’s property, taking it from the original owner without payment. Though often imagined as someone acquiring a large piece of land by underhanded means, in reality adverse possession claims are far more likely to involve a border-line dispute between two neighbors.

A successful adverse possession claim in California must prove all of the following:

Hostile Claim – The occupier (the person without title) must possess the land against the interests of the owner, i.e., without their permission.

Actual Possession – The occupier must be physically present on the property, taking care of it as if they were the owner.

Open and Notorious Possession – The occupier’s possession of the property should be plain for anyone to see, serving as a kind of notice to the owner. What constitutes open and notorious possession will depend on the type of property, but common examples are enclosing it with a fence or constructing buildings.

Exclusive and Continuous Possession – The occupier must be the sole possessor of the property for at least five years, and their possession must be uninterrupted. For example, if the occupier was on the property for four years, then left for six months, and returned, the clock on the five-year period would start over again.

Payment of Taxes – The occupier must pay all state, county, and municipal taxes levied on the property. This serves as another type of notice to the owner. Payment must be made in a timely manner, meaning the occupier can’t simply pay off five years’ worth of taxes all at once.

Resolving an Adverse Possession Case

As stated above, a typical adverse possession case doesn’t involve an intentional scheme to take over someone else’s property, but rather a neighbor encroaching on the border line. Often these situations can be resolved amicably (depending on the neighbor), but other times it’s more complicated, such as when it’s the neighbor’s house that is on the wrong side of line. The parties may be able to negotiate a transfer of title, but sometimes litigation is the only option.

During the five-year period required for an adverse possession claim, the occupier is continually trespassing on the owner’s property. This means the owner can simply file for eviction. Even if the occupier had built some structure on the owner’s land, they would have to remove it.

If the five-period has already passed, either the occupier or the owner can initiate an action to quiet title, in which the court will decide who the rightful owner is. The burden is then on the occupier to prove every element of their adverse possession claim. It’s a difficult case to win, as courts don’t like taking property from the original owner. If the occupier does win, they receive title to the land and have full rights as the new owner.

The Importance of Having a Real Estate Attorney

Adverse possession cases are complex and the stakes are high for the parties involved. No matter which side of the dispute you are on, it is critical to have an attorney with expertise in real estate matters. They will be able to review deeds and other property documents, get an accurate survey of the property boundaries, and properly evaluate the adverse possession claim in light of all the facts.

If you are involved in a real estate dispute such as adverse possession, don’t hesitate to contact our experienced team of Southern California real estate attorneys.

Written By

Hoffman & Forde, Attorneys at Law