Legal Question in Real Estate Law in California

Re: Adverse Possession Question

Well, to be sure, you should pay property 1/3 taxes. Technically, he knows of your interest and I think this insulates you from the claim. However, paying taxes is classic proof on Adverse Possession. I would make sure you give him notice that he lives there with your permission and demand to pay 1/3 taxes. If he refuses, you may need to file suit for a judicial partition.

Re: Adverse Possession Question

There are a few things I think you can do to protect yourself and still maintain your relationship with your brother. All three parties who owned property could enter into a written agreement. That agreement should be prepared by an attorney specializing in real estate. It shouldn't cost you too much and should basically set forth the facts as they are now and specify that under no circumstances because he is paying all of the expenses including the taxes does this allowed him to claim any parter portion of yours or your other brothers ownership interest through adverse possession. Basically he would be waving his claim to adverse possession. It is not agreeable to sign such an agreement and participate in the cost of having a prepared than I questioned his motives relating to the property and I would do something immediately to secure your interest in the property. Another thing you could do would be paid one-third of the taxes is that is a key factor in an adverse possession lawsuit and claim. Lastly, there's such a thing called a Partition Action which requires your brother either the bayou out, you buy him out or sell the property and divide the proceeds. This is an extreme alternative but if nothing else works when you must go to extreme measures to protect your interest in the property. Possibly if things turned bad you can claim that he owes reasonable rental value for the time he is occupied the property for some period of time back but that is somewhat of an uphill fight based upon the factual given me thus far.you must do something immediately because of the statute of limitations applicable to a claim of Adverse Possession. I have been practicing law in this legal area for over 30 years and understand your problem well. I practice in the S.F. Bay Area and if you wish to contact me call at 925-945-6000.

Re: Adverse Possession Question

Neither of the prior answers mentions the key aspect of the law.

Each cotenant in a joint tenancy or tenancy in common has the right of possession, as does each other cotenant. Therefore, the possession of the property by one cotenant is not adverse nor hostile. Consequently, adverse possession does not take place when one cotenant continuously occupies property.

There is one possibly dangerous "exception" to the above rule. If the cotenant out of possession has been "ousted" by the cotenant in possession, the possession can then be found to be sufficiently hostile or adverse for adverse possession to occur, and the ousted cotenant may lose his title.

Whether an ouster has occurred here depends upon the circumstances of your being out of possession and remaining out of possession. Your brother's sole possession will be deemed permissive and not adverse until you have some notice, either actual or constructive, that your right of possession is to be denied you. This could be by changing the locks (although if you never had a key in the first place this probably wouldn't be an ouster since it changes nothing), by an argument or discussion in which you're threatened with harm if you try to set foot in the property, or receiving a letter denying your 1/3 interest exists.

Under the facts your set forth, and making the rather unwarranted assumption that no other facts exist, I don't think you are an ousted cotenant and I don't think adverse possession is running against you. Nevertheless, there are some self-protective steps you could take. One would be to have your brother sign a simple one-page agreement in which (1) he re-acknowledges the 2/3-1/3 ownership; (2) you acknowledge that you are voluntarily allowing him to live there in respect of your mother's wishes; and (3) he is to pay the taxes (and take care of routine upkeep, etc.) as rent for your 1/3 interest. You could mention that 'your alternative is to seek a partition and you certainly don't want to do that.'

If your brother ever does anything that amounts to an ouster, such as ordering you off the property and not to return, the five-year adverse possession clock starts to tick at that moment.