Adverse Possession Against an Estate

Updated on September 13, 2023

Adverse possession can arise in several different situations.  This blog will discuss the situation where a third party adversely possesses property against a decedent’s estate. Other scenarios will be discussed in future blogs.

Under an opened administration, a third party can adversely take possession of real property and establish title to the property.  If done correctly, the third-party’s title would then be valid as against the estate and heirs.  Patchett v. Pacific Coast Ry. Co. (1893) 100 Cal. 505, 509–10; McLeran v. Benton (1887) 73 Cal. 329, 342.  The result is the same in the alternate situation where the decedent’s estate has not been administrated.  As long as the claimant has met all the requirements for adverse possession as against the estate and record owner, adverse possession should be granted even though an administration has not been opened.  Johns v. Scobie (1939) (“Scobie”) 12 Cal. 2d 618, 627–28.  Scobie dealt with an adverse claimant who took possession long before administration began.  There, the court held,

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His title by adverse possession, if it could be acquired, was complete before administration began. The mere possibility of some future proceedings in administration could not completely bar the acquisition of an adverse title. It would seem clear that if adverse possession can be gained against the other heirs, who have the legal title, it certainly can be gained against such claims as the executor or administrator may have for purposes of administration. Id.

In these types of cases, it is not unusual for a third-party adverse possessor to be completely unaware if any of the heirs to the property are minors or suffer from any disabilities.  This is significant because normally the five-year prescriptive period for adverse possession is tolled or discontinued when the rightful owner of the property is a minority or suffering from a disability. (CCP § 328.)  However, whether or not the tolling rule applies to a third-party claimant seeking to adversely possess property from an heir who is either a minor and/or suffers from a protected disability remains unanswered.  There are older cases that hold title by adverse possession would be still be valid because according to those cases the personal representative, and not the heirs, holds the legal title to the property pending the probate administration.  Webb v. Winter (1902) 135 Cal. 455, 458; Dennis v. Bint (1898) 122 Cal. 39, 44.

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Our real estate attorneys at Schorr Law have a great deal of experience with real estate matters and disputes, specifically with adverse possession related matters. To see if you qualify for a free 30-minute consultation, contact us today!

See related: Monitoring Your Properties for Adverse Possession