Adverse Possession Litigation
In California, adverse possession occurs when a person who wants to claim someone else’s land must not only use it for at least five years, but they must also pay property taxes on it.
“Adverse possession” is a means of acquiring full title to property through “open and notorious” continued possession and use of a property for 5 consecutive years and the payment of all taxes thereon. A prescriptive easement, on the other hand, is merely a means to acquire the right use land, but not the right to own or exclusively possess the land of another. Unlike a claim of adverse possession, a claim of prescriptive easement does not require the party to prove s/he paid all of the real property taxes.
There is a growing trend in California, however, to deny an “exclusive” prescriptive easement in situations involving boundary encroachments as the courts have determined that an exclusive prescriptive easement equates to adverse possession.
It should be noted that California courts are loath to grant a quiet title action based on adverse possession and the standard of proof is very high.
How adverse possession occurs
Adverse possession occurs when another person takes over your title after possessing your land. If they remain in possession of it for a specified number of years, they can make a legal claim in court for the title.
There are four major elements an adverse possessor must meet in order to make a valid claim for adverse possession
- Hostile claim:
In the case of a hostile claim, the trespasser must do one of the following:
- Err in an honest manner, such as relying on an erroneous deed
- Merely occupy the land, regardless of whether they know that it is private property
- Know they are trespassing
- Actual possession
Here, the trespasser has to be present, physically, on the land, treating it as if it belongs to them.
- Open and notorious possession
The trespasser should not occupy the land in secret. The land’s legal owner should know of the trespasser’s occupancy.
- Exclusive and notorious possession
The trespasser should have sole possession of the land and such possession should be for an unbroken period of time.
How to protect your property from squatters
A squatter is a person who occupies a property that does not own, rent, or has permission from the owner to legally occupy it. Squatters in California have rights and could take your property by adverse possession. It does happen, so know your rights and protect your property. Here are some suggestions to ensure you do not become the victim of squatters:
- Pay your taxes on time.
- Make sure you keep your rental property filled with tenants.
- Do not allow subletting, make sure it is clearly stated in the lease.
- Hire a property manager to watch your properties when you cannot.
- Make sure your property has a reliable security system.
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