Legal Question in Real Estate Law in California

Re: property rights

Probably not. Unless you have used the property in a manner which would give the owner notice that you claim some right to the property adverst to his/hers, and have paid taxes, etc. on the property for at least 5 years, it would be hard to claim an ownership interest.

Re: property rights

Consult with an attorney who can go over all the facts to determine your chances on this matter. Our CA attorney can advise you.

Re: property rights

There are two kinds of rights that can be acquired in the property of another over time. The first is outright ownership by adverse possession, which is what Mr. Hoffman was describing. Ownership by adverse possession is difficult to acquire in California because it requires, among other things, that the claimant have paid all the property taxes assessed on the property for five years. I'm pretty sure you haven't done that.

The second is a so-called prescriptive easement, or easement by prescription. This is the right to use the land of another, without owning it, for a particular purpose, due to having used the land for that purpose for five or more years. Since easements usually aren't separately assessed and taxed, there is no requirement to pay taxes during the five years.

A typical example of a prescriptive easement is a driveway, used for ingress and egress, that cuts across the corner of a neighbor's land.

The elements necessary to establish a prescriptive easement are five years of adverse, open and notorious, continued and uninterrupted use of another's land under a claim of right. The element of adversity means basically "without express or implied permission or legal right" and "open and notorious" means that anyone who was present could have noticed what was going on.

Another requirement that seems to be more and more often applied by California courts is that the easement must not be "exclusive." By that, the judges mean that the recognition of a prescriptive easement must not act to exclude the owner of the underlying property from all uses of his own land surface.

As a result, the obtaining of easements for things such as fences, woodsheds, orchards and the like have been rejected by the courts with increasing regularity. I'm afraid that a prescriptive easement for gardening would be borderline, and very likely your claim would be rejected on the basis that the use (a garden) would effectively deny the owner all practical uses and would amount to a grant of ownership to you, rather than just an easement.

However, with respect to the buried pets, I'd say you have a valid prescriptive easement fot that purpose.

The practical answer here is that you probably have to relinquish future use of the lot to its owner or record, but I would refuse to do any digging up of anything so he can sell.