Who Can Claim Property Based on Adverse Possession in California?

How a trespasser can end up gaining ownership over a California landowner's property.

California is the most populous state in the country, with booming real estate markets in both the major cities and more rural areas. But whether you own a townhouse in San Francisco or a large suburban home outside of Los Angeles, you likely have two or three neighbors around your property. Under California law, these neighbors could gain possession of parts of your property under a legal doctrine known as adverse possession.

Adverse possession essentially allows a trespasser onto a piece of land to gain ownership of that land if the true owner fails to object within a certain period of time and if the trespasser pays faithful property taxes on the subject land.

To make sure that all of your land remains yours, it makes sense to keep an eye on your property lines. Or, you yourself might eventually want to assert a claim for adverse possession against another individual's land. Either way, you'll need to learn about California's adverse possession laws.

How Adverse Possession Laws Work

Adverse possession is a legal concept that allows a trespasser—sometimes a stranger but more often a neighbor—to gain legal title over someone else's land. The concept first developed centuries ago, in early Britain. It has been kept alive in order to achieve a fair result when one owner left a piece of land idle or unused, while another has been tending to it for so long that to make him or her leave would seem unfair, or create hardship.

In California, adverse possession is defined and regulated both by statute and by state courts.

Burden of Proving Adverse Possession in California Is on the Trespasser

Of course, there are some hurdles to clear before someone can claim a piece of your California land using this theory. For one, the burden of proof is on the trespasser. In other words, if you hold legal title to a piece of land, you are its presumed owner until and unless the adverse possessor can come up with enough compelling evidence and arguments to convince a judge to give him or her ownership over all or a portion of it; most likely in the context of you suing to oust that person.

Adverse possession should not be confused with having an easement to use another person's property—for example, when a neighbor has an easement to use your driveway to access his or her property. Easements involve shared rights with others in pieces of property, whereas adverse possession results in a shift in title, and the corresponding right to exclude others from the property. Read more about easements.

California's Requirements for Adverse Possession

There is no single statute in the Golden State that dictates the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors over many decades of issuing decisions in individual cases.

As in most states, adverse possession in California is established from the nature of a trespasser's possession and the length of time the person possesses the land.

A trespasser's possession must, in California, be:

  1. accompanied by a claim of right or color of title (meaning the trespasser is either asserting ownership despite having no purchase documents, or actually has some sort of title document making it look like he or she might be the owner)
  2. hostile (against the right of the true owner and without permission)
  3. actual (exercising control over the property, including things like enclosing or continually improving it, to show the area being claimed)
  4. open and notorious (using the property as the real owner would, without hiding one's occupancy; thus essentially putting the original owner on notice), and
  5. continuous for the statutory period (which is five years in California under Cal. Civ. Proc. Code § 325).

California has another crucial requirement: An adverse possessor must show that he or she paid taxes on the subject property for all of the five years.

Imagine that Brian and Suzy live next to one another in a suburb outside of Pasadena. Without a wall between their properties, Brian begins to put lawn furniture on what is technically Suzy's land. Eventually, Brian builds an entire patio there. Suzy never says anything. The years pass—five years, in fact. Brian pays property taxes to cover that piece of land. Under California's adverse possession framework, Brian could potentially be successful in establishing an ownership claim to that portion of Suzy's property. Note that he won't be able to take over all of Suzy's lawn—only the portion upon which he constructed the patio and which he actively used for those years. California courts would be reluctant to suddenly eject Brian and his patio after so much time has passed.

Cutting Off an Adverse Possession Claim With Action to Quiet Title

What should you do if you spot a trespasser or a neighbor encroaching on your California land? Your first move, of course, is to speak with the person and ask that he or she remove all structures from, and refrain from entering onto, your property. If it's an innocent mistake, the person is likely to comply.

If the trespass continues, you might want to consult a lawyer and bring an action to quiet title. This is a legal method for determining the rightful owner of land.

You'd be asking a California state court judge to issue an order declaring that you, and not the trespasser, are the true owner (and title holder) of the land. This order is particularly helpful if you are seeking to sell your property, and need to reassure potential buyers.

No Adverse Possession Claims Possible Against Government Land

Any property that is held by California's state and local government entities is typically immune from adverse possession actions. Therefore, if you live next to an undeveloped portion of Big Basin Redwoods State Park, you won't be able to "annex" a larger yard by building a shed and waiting five years. California's government always has first priority when it comes to ownership.

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