What Is Adverse Possession?

Real estate attorneys in Los Angeles are often asked by potential clients if they have a claim for adverse possession. It is a legal phrase that many non-lawyers have heard of but do not quite understand what it requires. Real property litigation may involve claims regarding land and ownership but rarely is adverse possession the correct legal cause of action.

What is adverse possession?

The California Code of Civil Procedure sets forth definitions of adverse possession based on written instruments and based on occupation without a written instrument.

Adverse possession under a claim of written instrument or judgment is present in those cases where (1) the land has been usually cultivated or improved, (2) where it has been protected by a substantial inclosure, (3) where, although not inclosed, it has been used for the supply of fuel, or of fencing timber for the purposes of husbandry, or for pasturage, or for the ordinary use of the occupant, (4) where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared, or not inclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.

Most claims of adverse possession, however, are not premised on a written instrument or judgment. Most claims of adverse possession are based on occupation of the property at issue.

In general California law states that where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment, or decree, the land so actually occupied, and no other, is deemed to have been held adversely.

However, there are specific requirements for adverse possession that most non-lawyers are unaware of. In order to establish adverse possession in Real estate litigation Los Angeles, a claimant must establish that the property at issue has been protected by a substantial enclosure, it has been usually cultivated or improved, the land has been occupied and claimed for a continuous period of five years and “the party or persons, their predecessors and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed.” The claimant in litigation must show payment of those taxes by certified records of the county tax collector.

Adverse Possession and Taxes: The Achilles Heel of Most Adverse Possession Claims

It is not enough to have used someone else’s property for five years. You must have paid the taxes on the disputed property. This is the fatal flaw in most adverse possession claims since it is very rare that someone has paid someone else’s taxes.

Adverse Possession Between Neighbors

Non-lawyers who are involved in disputes with their neighbors over boundary issues often raise the prospect of adverse possession. They state they have been using their neighbor’s property for the requisite five years and they therefore inquire about the right to adverse possession. An experienced California real estate litigation attorney, however, knows that the neighbor is almost always unlikely to have paid the taxes on his neighbor’s property. Property taxes are usually assessed based on the legal description of a property, not on where the parties have located their fences. This often creates confusion among fighting neighbors. It is the legal boundary which is being taxed. Property taxes are rarely assessed based on a visual inspection of the property and therefore a boundary error by either of the parties is usually not sufficient to establish adverse possession.

Adverse Possession in a Landlord/Tenant Situation

California Code of Civil Procedure section 326 addresses situations in which the claimant is or was a tenant. The law states that when the parties have been a landlord and a tenant, the possession of the tenant is deemed the possession of the landlord until the expiration of five years from the termination of the tenancy, or, where there has been no written lease, until the expiration of five years from the time of the last payment of rent.

Adverse Possession versus Easements

The biggest source of confusion among non-lawyers is the difference between adverse possession and easements. The easiest way to remember the distinction is that adverse possession is a claim to complete ownership of the property. An easement is a claim to have a right of use to the property. The claim of right to use the property is usually to access the claimant’s property. However, an easement never grants the claimant exclusive use, meaning that the property owner still owns the property and still has a right to use it, even if someone else has a right to use it (the easement).

However, in the most common situation where the parties have assumed that a fence marks a boundary, the fact that a property owner has a fence built inside of his property line does not usually mean that the adjoining landowner can now claim adverse possession or an easement over the land in dispute. A property owner is entitled to erect a fence inside his property line (rather than on the property line) and, by doing so, does not sacrifice his interest in the remainder of the property. The fact that a neighbor may have planted or otherwise improved that section of disputed land does not usually rise to the level where a court would give that neighbor a right to the property.

The biggest lesson to keep in mind when thinking about adverse possession is that it is extremely difficult to win on an adverse possession claim in Los Angeles or anywhere in California.

Laine T. Wagenseller is the founder of Wagenseller Law Firm in downtown Los Angeles. He specializes in real estate litigation and has handled numerous cases involving adverse possession, easements and boundary disputes between neighbors. For more information please visit www.wagensellerlaw.com or contact Mr. Wagenseller at (213) 286-0371