Wednesday, March 23, 2011

Adverse Possession

Cheyenne Ison

Adverse Possession: Keep Your Property Protected

Envision owning a property in another state in which you rarely visit, and then when you finally visit that property there is a family living on your land. Not only is that family living on your land, but they say they are now the owners of your property. They claim they have lived at the property for a long period and have recently put in a pool. The majority of the public would say “there is no way that could happen,” but legally it can. Many individuals have heard the slang phrase “squatter’s rights,” but do not know what the phrase entails. The phrase “squatter’s rights” refers to the lawful doctrine of “adverse possession (LII, 2011).” Adverse possession is a principle of real estate law whereby an individual who possesses the land of another for a certain period of time may be able to claim legal title to that land (DOT, 2011). People usually correlate adverse possession with vacant, run down properties in the middle of nowhere; however, adverse possession has profuse applications today even in metropolitan communities. Adverse possession claims now generally arise from dissimilarities over boundary lines which end in one claimant solely beginning to use in an apparent manner, while paying taxes, on the adjacent lot and if five years goes by, the claim is complete and passage of title may be automatic.

Adverse possession's roots are based both in statutory actions and in common law, so the specifics regarding adverse possession actions vary by jurisdiction. In California, in order for someone to claim adverse possession on another’s property, there are a few specific possession elements that the claimant must follow. The possession of the real estate must be actual, open and notorious, exclusive, hostile, under claim of right or color of title, continuous for a minimum of five years, and claimant must have made payment of all taxes levied against property within said period (Real Estate Law, 2011).

The first requirement of claiming adverse possession is that the claimant must openly, notoriously, and actually occupy the property (DOT, 2011). “Actual” means claimant actually acted in the manner of the owner of the property, such as putting in fencing, farming, land clearing, adding visible improvements or construction of buildings. In order for someone to claim adverse possession they must occupy the property in such a way that the owner could discover the possession with a rational checkup of the property (Huber, 2008). It does not matter if the owner lives thousands of miles away or right next door, as long as the owner could discover possession within reasonability.

Another requirement of claiming adverse possession is the possession must be hostile to the owner. Hostility occurs when an individual possesses the land of another expecting to keep it without the owner’s consent or permission. The possession is hostile because it is adverse to the owner’s interests (Anderson, 2007). The claimant of the property must also have exclusive possession over property, which means the property being claimed cannot be shared with the legal owner. An additional element of adverse possession is that possession of property must be made under either a color of title or claim of right (LII, 2011). A color of title is when the possessor thinks he or she honestly and actually owns the property and has documents to prove ownership; however, the documents are in fact forged, such as phony deeds, community property deeds without the partner’s signature, or quashed judicial decrees (DOT, 2011). A claim of right is when the possessor occupies the land knowing it is not he or she’s and without confidence in any written document. With claim of right the possessor can only claim property he or she actually occupied, but with color of title the possessor can claim all of the area designated in the forged document.

Another requirement of adverse possession in California is five years continuous possession (Huber, 2008). The claimant must possess the property for five continuous years, although possession does not need to be unbroken. The possessor only needs to possess property with the same regularity as the equitable owner of the property. If the legal owner of the property is disabled, the five year continuous period cannot begin until the owner recovers or 20 years, whichever is less (Anderson, 2007). Lastly, the possessor must pay all property taxes during their five year period. Even if the true owner is still paying taxes each year, the claimant can claim adverse possession if they are paying the taxes concurrently. If the possessor is unsuccessful in paying even one year out of the five, he or she can no longer claim adverse possession (Huber, 2008).

It is vital for a property owner to visit his or her property every few years, and take the time to venture around the property to make sure no one is seeking to claim adverse possession. The property owner should always take pictures of the property every few years and make sure that no one else is paying their property taxes. It is also a great idea for a property owner to get a survey done on their land in order to accurately define their boundary lines. It doesn’t matter if the property is worth 100 dollars or 50 million, an individual can seek adverse possession easily if the owner gets careless.

Works Cited
Adverse Possession. Department of Transportation. Web. 10 Mar. 2011. .

Adverse Possession | LII / Legal Information Institute." LII | LII / Legal Information Institute. Web. 23 Mar. 2011. .

"Adverse Possession - What Is It?" Real Estate Law - Real Estate Lawyers & Attorneys - Free Legal Information. Web. 23 Mar. 2011. .

Anderson. California Real Estate Practice. Chicago, IL: Dearborn Real Estate Education, 2007. Print

Huber, Walter Roy. California Real Estate Principles. Covina, CA: Educational Textbook, 2008. Print.

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