ADVERSE POSSESSION

A person may obtain title to property, simply by taking possession of, and keeping possession of it, in a manner hostile to the true owner. This is called adverse possession. To prove title by adverse possession, the person seeking such title must prove all of the following elements.

“(1) Possession must be actual possession under such circumstances as to constitute reasonable notice to the owner. (2) It must be hostile to the owner’s title. (3) The holder must claim the property as his own under either color of title or claim of right. (4) Possession must be continuous and uninterrupted for five years. (5) The holder must pay all taxes levied and assessed upon the property during the period.” Dimmick v. Dimmick (1962) 58 Cal. 2d 417, 421; 24 Cal. Rptr. 856.

The courts do not favor this doctrine; they require that every element noted above be proven. A few aspects of this should be noted.

First, if the person is in possession of the land with the consent of the owner, then adverse possession cannot be established.

Second, the person seeking title must have acted in a way that showed open hostility to the title of the true owner. In Preciado v. Wilde (2006) 139 Cal. App. 4th 321, 42 Cal. Rptr. 3d 792, adverse possession was denied, because the person seeking title never did anything to exclude the true owner from the property. He never sought to restrict the owner’s access, nor did he give the owner notice of contesting his title.

Third, the party seeking title must have paid property taxes on the disputed land. In many cases, in which a fence or wall is built over a property line, one party will be able to show most of the elements of adverse possession. Unless property taxes are paid, however, adverse possession cannot be had, and, in ordinary city lots, the encroacher will almost never pay property taxes.

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