Legal Question in Real Estate Law in California

Re: Adverse possession

The elements of adverse possession are:

(1) Possession, which is (2)continuous, (3) open and notorious, and (4) adverse to the rights of the record owner for (5) a period of five years and (6) payment of all taxes and assessments.

Each of these terms used has a legal-technical meaning that may differ from the plain-English meaning that would be ascribed to it by a non-lawyer. Continuous possession, for example, does not mean you have to be on the land 24/7/365.

Paying the taxes is often the most difficult hurdle, because absentee owners who are not in possession will usually nevertheless pay the tax bills. However, if as you suggest this property may soon be sold for delinquent taxes, you may be in a good position to pay the texes. You should find out how many years are in arrears; if it is less than five years, it's too soon to act.

The possession requirement would have to be examined closely to see if you meet it. Unfortunately, it sounds more as though you have been covetously eyeing this property across the boundary without actually being in possession of it. Showing possession would require something like cultivating it, running your livestock on it, fencing it in, or perhaps merely believing you owned it because of, perhaps, an erroneous deed. Simply being a neighbor and looking at it across the fence is decidedly not adequate to amount to possession.

You don't have to occupy every square inch, however. Exercising dominion over most of the 20 acres would probably suffice as possession of the entire parcel. This is especially likely to be so if the parcen is not subdividable under existing zoning.

The adversity or "hostility" requirement is met if your possession is without express or implied permission. In other words, the record owner hasn't given you permission to come on his 20 acres to mow the weeds, or use the extra pasture, or something of that sort.

I would be pleased to take a closer look at your facts and give you a more detailed response if you contact me directly at my email address. The subject of adverse possession is rather technical and fact-dependent, and I don't have nearly enough information at present to give you a specific answer as to your chances of prevailing in a quiet-title action based upon adverse possession. (A quiet title suit is necessary to obtain official recognition of the fact that title has passed through adverse possession.)

Re: Adverse possession

It sounds to me that you cannot adversely possess it, because you have not been paying the taxes on it. Payment of the property taxes is a necessity to an adverse possession claim in California.

If you want the property, and it is adjacent to your property, you should have notice of the tax sale. You should be afforded the opportunity to purchase the property outright at the tax foreclosure sale, usually for the amount of the property tax indebtedness.

Once you purchase the property at a tax foreclosure sale, the previous owner has one year to file an action to set aside the sale, but that owner has to show that there was defect in the foreclosure sale. I have handled these cases, and if you want I can forward you a copy of an appellate opening brief I drafted on the subject, which would familiarize yourself with the issues.

Very truly yours,