Adverse Possession

Adverse possession is a legal principle that allows a person to gain legal ownership of another’s land by openly and notoriously occupying and improving it for a period of time of at least 5 years while paying the property taxes. When all statutory requirements are met, the original owner’s title is extinguished, and the possessor acquires valid title to the property.

In California, adverse possession is a high bar to clear, requiring the possessor to prove they have treated the land as their own in a way that is hostile to the true owner’s rights. It does happen – we have done it for our clients at Schorr Law over and over. The only way to truly perfect your adverse possession claim is to bring a quiet title claim after you have met the 5 key elements.

Definition and Legal Requirements Under California Law

Adverse possession is the statutory method of acquiring title through “notorious” occupation. Unlike an easement, which only grants the right to use land, adverse possession results in a transfer of ownership.

To successfully claim adverse possession in California, the claimant must prove specific elements:

1. Hostile Possession: The occupation must be without the owner’s permission and in defiance of their rights.
2. Actual, Open, and Notorious: The possessor must physically use the land in a way that gives the owner “notice” that someone else is claiming it. The case law says that you must fly your flag high for the world to see you are claiming the property as your own – of course that relates to the wild west times. The concept is the same, treat the property as your own and don’t hide it.
3. Continuous and Uninterrupted: The possession must last for at least five consecutive years.
4. Payment of Property Taxes: The claimant must have paid all state, county, or municipal taxes levied on the property during the entire five-year period.

The “Tax Requirement” in California

The most significant hurdle in California law is the payment of property taxes. Under California Code of Civil Procedure § 325, a claimant cannot gain title unless they provide certified records proving they paid all property taxes on the disputed parcel for the full five-year statutory period.

This requirement prevents most “squatters” from gaining title to residential homes where the true owner is still paying the tax bill. The code says that you must pay the taxes in the year they are assessed – on time! Many people think they can just pay the back taxes, but that is not true.

Types of Adverse Possession Claims

The legal strategy for claiming title often depends on how the possessor first entered the land.

• Claim of Right: Occupation based on the intent to claim the land, even if the possessor knows they don’t have a deed.
• Color of Title: Possession based on a written instrument (like a deed or a will) that the possessor believes is valid but is actually legally defective.
• Adverse possession cases are often litigated via Quiet Title actions and frequently involve complex evidence regarding land use and intent.
• Permissive Use: If the owner gave the possessor permission to be there, the “hostile” element is defeated, and the claim fails. Many contested adverse possession disputes involve a battle over whether the use was permissive.

California Statutes Governing Adverse Possession

The procedures and standards for acquiring title through possession are codified in the California Code of Civil Procedure.

• CCP § 318-325: Outlines the five-year requirement and the necessity of tax payments.
• CCP § 760.020: Provides the framework for a Quiet Title action to “perfect” the title gained through adverse possession.

Related Real Estate Litigation and Property Terms