What is Adverse Possession (CCP § 323)

Underwood-Blog-Images-1-300x300In California, a person can claim title to a piece of real property that they are not a titleholder to through adverse possession. Adverse possession requires a person to be in use of a particular piece of real property for the required statutory period. An adverse possessor, however, does not become the titleholder of a piece of property merely by using the property. Certain elements are required for a claimant to acquire title through adverse possession. The requirements for adverse possession are codified in the California Code of Civil Procedure section 323. 

Under section 325, subdivision (b), for an adverse possessor to gain title through adverse possession, the claimant must prove (1) possession under the claim of right or color of title; (2) actual, open, and notorious occupation of the premises which gives reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period. (CCP § 325(b).) At Underwood Law Firm, our attorneys are more than familiar with adverse possession and the elements required for gaining title through adverse possession. 

Possession Under the Claim of Right/Color of Title 

For adverse possession to be valid, possession must be under the claim of right or color of title.  (CCP § 325(b).) Adverse possession under the color of title occurs when a litigant gains possession through a written instrument, judgment, or decree which purports to convey the real property but is defective. (Aguayo v. Amaro (2013) 213 Cal.App.4th 1102 [153 Cal.Rptr.3d 52].) It is important to note that for possession to be under the color of title, there is a good faith requirement, meaning that the claimant relied on the defective document in good faith and without knowing it was defective. (Id.) Adverse possession under the claim of right occurs when the adverse possessor takes possession of the property with the intent to claim title to the property (Id.) As opposed to the color of the title, there is no good faith requirement for adverse possession under the claim of right. 

For example, “Nathan” abandoned his home in Riverside, taking all of his things with him four years ago. “Hannah” was a squatter that found Nathan’s empty home and began living in it. Hannah lived in Nathan’s house for two years, and then she decided to sell it, believing she held the title through adverse possession. Hannah then sold the house to “Amy” and gave her a deed to the house that did not mention Nathan. Amy began living in the house. Although the other elements of adverse possession have yet to be satisfied, Amy took possession under the color of title. Amy believed that the deed to the house was valid, and she had no reason to believe that Hannah had no right to sell her the house. 

Actual, Open, and Notorious Occupation Which Gives Reasonable Notice 

Adverse possession must be actual, open, and notorious to give the true owner reasonable notice of the adverse possession. (CCP § 325(b).) In other words, the adverse possessor must perform acts that are consistent with those acts of an owner or acts of ownership. The adverse possessor must actually occupy the property subject to adverse possession so that the owner of the property is given reasonable notice. (West v. Evans (1946) 29 Cal.2d 414.) Therefore, a squatter who sleeps in an abandoned house from time to time, without anyone knowing, is not in actual occupation of the house. Also, possession must be exclusive, meaning that a claimant will not be considered an adverse possessor if they are sharing possession with the true owner of the property. (Cal. Civ. Prac. Real Property Litigation § 13:3.) However, it is important to note that occupation does not need to be personal; it may be by a tenant of the adverse possessor. (Id.

Possession That is Adverse and Hostile to the True Owner 

The adverse possession must be adverse and hostile to the true owner of the subject property. (CCP § 325(b).) Possession is adverse and hostile to the true owner when the claimant does not have the true owner’s permission to occupy their property. There is no requirement that there be a dispute over the title, but rather, the claimant’s possession must be adverse or hostile to the true owner’s rights as the record owner. (Hinrichs v. Melton (2017) 11 Cal.App.5th 516.) 

Continuous Possession for at Least Five Years 

In California, the statutory period for adverse possession is five years. During those five years, the claimant’s possession needs to be continuous and uninterrupted. Continuous means that the possession is consistent. A claimant’s constant occupancy of the property is not required to satisfy this element; rather, their ordinary use of the property must be continuous. (Cal. Civ. Prac. Real Property Litigation § 13:6.) For example, if the property is a lake house that the adverse possessor only uses as a vacation home in the summers, possession will be considered continuous as long as the adverse possessor continuously uses the lake house as a vacation home over the course of five years. 

Payment of All Taxes Assessed Against the Property 

In California, under section 325, the claimant must have timely paid all state, county, and municipal taxes that have been levied or assessed on the property for the five-year statutory period. Payment of taxes is also considered to be an act of ownership that places the true owner on notice of the adverse possession. 

How Can the Attorneys at Underwood Law Assist You? 

For a party to prevail on an adverse possession claim, the party must establish that they satisfied all the elements of adverse possession. In California, there are five elements of adverse possession that a claimant must prove: (1) possession under the claim of right or color of title, (2) actual, open, and notorious possession that gives reasonable notice to the true owner, (3) possession that is hostile to the true owner, (4) continuous possession for the five-year statutory period, and (5) payment of all taxes for the five-year statutory period. 

As each case is unique, litigants would be well-served to seek experienced counsel familiar with the ins and outs of adverse possession and the law surrounding it. At Underwood Law, our knowledgeable attorneys are here to help. If you are attempting to assert an adverse possession claim, are worried about your ability to acquire title through adverse possession, or if you just have questions, please do not hesitate to contact our office. 

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