Can a co-owner lawfully adverse possess the other tenant’s interest in the property?

While it is possible for a co-owner to lawfully adversely possess the other tenant’s interest in the property under California law, in practice it is quite difficult and cumbersome.

Can a co-owner lawfully adverse possess the other tenant’s interest in the property? Blog Image for Underwood Law FirmIf you co-own or are a co-tenant of a shared piece of real estate property, possession is not enough for the court to determine that the other party will lose their rights or their interest in your shared real estate property.

Read on to find out the elements that must be taken and proven in court to have a co-owner lawfully and successfully adversely possess the other tenants’ interest in the property. 

What is adverse possession?

Adverse possession is defined as the occupation of the land to which another person has a title (or the rights to) with the intention of possessing it as theirs exclusively. On occasion, this can colloquially be called “squatters rights,” or even “trespassers rights.”

Adverse possession requires one of the parties to use the property in question in such a way that gives everyone who passes by “notice” of their intent to use the property exclusively for themselves.

While there are normally several requirements or elements of adverse possession, if this legal action called an “adverse possession action” is directed towards a co-owner, then there are even more elements that the current property holder must meet.

The tenant that is bringing the adverse possession action against the other tenant must show what is called an “ouster,” or strong evidence that the tenant is “pushing out” the other tenant. 

What is an Ouster?

An ouster is someone who excludes a co-tenant or another tenant from the property by actions such as putting up a physical barrier like a fence, shrub, or wall of bushes. 

Under the California Court case “Hacienda Ranch v. Superior Court,” the court defined the term ouster as the actual exclusion from the property in question. The court stated that acts that are considered to “oust” another person with an interest in the property include the denial of the property title, changing the locks, and denying admittance to the property on a regular and sustained basis. It is not enough to change the locks once or to exclude the co-tenant from the property on a single occasion. It must be consistent that another co-owner or co-tenant of the property is purposely excluded from the property in question.

Under California Civil Code 843, it states that if the co-tenant in possession does not offer unconditional concurrent possession to the excluded covenant within 6 days after service of notice, then an ouster is established and the exiled co-tenant may seek their remedies for damages, possession, and/or partition. 

It is not enough to prove adverse possession via the actions of an ouster. You must continuously prove that the ouster exists such as changing the location of a “do not trespass sign,” or constantly changing the locks to ensure you are exclusively on the property.

 You want to show the court that you have the intention of keeping the other co-tenant or co-property owner that they are not welcome on the property in question. 

So how can you adversely possess another tenant’s interest in the property?

As a start, any party who wishes to get the legal rights to a parcel of real estate property must occupy the land in question for at least five consecutive years. Then, there are five strict elements that must be met. 

This means that all of the following elements must be met before the court will rule that the property in question has been adversely possessed from another tenant’s interest in the property. These elements include:

  1. You must actually occupy the property by physical occupation, with the goal of “notifying” the other owner(s).
  2. The occupying must be hostile to the owner’s interest.
  3. The person occupying the property must assert the property as their own.
  4. You must possess the property continuously and uninterrupted for five consecutive years.
  5. You must pay all the taxes associated with the property in question. 

However, one of the most important elements after physical possession of the property is the fact that the other co-owner or co-tenant has either actual or constructive notice that the physical possession of the property in question is hostile (or against) their interest in the property. 

If a co-owner is absent from the property, can the other owner claim adverse possession?

No. The law is specifically designed around this concern between co-tenants and co-owners and the legal standards were promulgated with other essential elements in mind. 

This means that in addition to solely occupying the property for five years, to claim adverse possession against a co-owner or co-tenant, you must meet the other elements of adverse possession before a court is likely to grant adverse possession against a co-owner, as explained above.

What if there are multiple owners of the property?

The law specifically designs for the process of adverse possession to be difficult to achieve each necessary element if there are multiple owners or co-tenants. 

This is because each co-tenant or property owner has a right under California Civil Law to occupy the entire piece of property by the co-tenants or property owners. 

This relates to adverse possession because exclusive possession of the property by one co-tenant is not enough to meet the legal threshold of adverse possession. 

Under California law, the physical possession of the property by one co-tenant or property owner is deemed to be viewed as possession of the property by all co-owners and is not viewed by the court as averse to the other property owners.

How can the Underwood Law Firm help?

The knowledgeable and experienced attorneys at Underwood Law Firm have years of experience working on partition and other contested real estate issues. Contact them today if you have contested or other real estates claim issues such as an ouster notice, partition notice, or other issues.

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