California is the most populous state in the country, with booming real estate markets in both the major cities and the more rural countrysides. 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.
Your property is likely your most valuable asset. To make sure that all of your land remains yours, it makes sense to keep an eye on your property lines. Moreover, you yourself may 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.
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 in early Britain. It has been kept alive in order to achieve a fair result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for so long that to make him or her leave would seem unfair, or create hardship.
In California, adverse possession is largely defined and regulated by the state courts. Of course, there are some hurdles to clear before someone can claim a piece of your California land using this theory.
One major hurdle is that the burden of proof to establish a claim of adverse possession 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.
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.
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 (i) hostile (against the right of the true owner and without permission); (ii) actual (exercising control over the property); (iii) exclusive (in the possession of the trespasser alone); (iv) open and notorious (using the property as the real owner would, without hiding his or her occupancy); and (v) 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.
These rules are easier to understand with a hypothetical. 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 will likely 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.
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 may want to consult a lawyer and bring an action to quiet title. This is a legal method for determining the rightful owner of land.
In an action to quiet title, you’re 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.
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 two decades. California’s government always has first priority when it comes to ownership.