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Saturday, April 17, 2021

WHAT IS ADVERSE POSSESSION?

Last updated Tuesday, March 2, 2021 22:51 ET , Source: Wagner Zemming Christensen, LLP

Adverse possession is a legal principle that allows a trespasser to obtain ownership of property–or even just part of a property–if the true owner fails to assert their rights in a timely manner.

Riverside, United States, 03/02/2021 / SubmitMyPR /

Trespassing is when someone unlawfully enters or occupies your property with the intent to interfere with your ownership rights. In some cases, trespassing is a criminal offense. Other times, trespassing can lead to a situation known as “adverse possession.”

Adverse possession is basically a legal principle that allows a trespasser to obtain ownership of property–or even just part of a property–if the true owner fails to assert their rights in a timely manner. Now, adverse possession is not a quick process. It actually takes several years of trespass before an adverse possession is recognized under California law. And in most situations, the “trespasser” is not some random squatter on your property, but a neighbor who has simply overstepped your property line.

Still, if you want to avoid a potential adverse possession scenario, you need to understand how the law works in California.

Proving an Adverse Possession Claim

The first, and perhaps most important, thing to understand about adverse possession is that the legal burden of proof is always on the trespasser to establish a claim. If you have title to the property (i.e., the deed), it is presumed to belong to you. Indeed, one requirement for proving adverse possession is that the trespasser’s claim must be “hostile” to that of the true owner. Likewise, the trespass must be without your permission. If you allowed your neighbor to use part of your property, for instance, then that is not a case of adverse possession.

Some other key elements of an adverse possession claim are:

  • The trespasser must exercise actual control over the owner’s property.
  • The trespasser’s control must be “exclusive,” i.e., they are the only one using the property.
  • The trespasser’s control must be “open and notorious”; in other words, they must be using the property as if they were the lawful owner and are not trying to hide what they are doing.

The final element of an adverse possession claim, at least in California, is that the trespasser’s control must have been continuous for a period of at least 5 years. As we said, adverse possession is not something that happens overnight. And in addition to occupying the property for at least 5 years, the trespasser must have paid all of the necessary state, county, or municipal taxes on the subject property.

Adverse Possession in Practice

Adverse possession most commonly arises in the form of a boundary dispute between neighbors. Let’s say Joseph and Marta own neighboring houses. There is no fence between the two properties, even though the property lines are clearly established in each owner’s deeds. Nevertheless, Joseph decides to construct a garden that is technically on Marta’s property. Neither person bothers to check the property lines, so the garden remains there for several years. After 5 years have passed, Joseph could claim legal title to the area where he built his garden under adverse possession.

So how could Marta stop Joseph from claiming part of her yard via adverse possession? Well, first she could simply show Joseph the actual property records and ask him to remove his garden. If he fails to comply, then Marta could file a lawsuit seeking to “quiet title.” This is basically a judicial order declaring that Marta is the true owner of the property. In fact, if either Joseph or Marta ever decided to sell their respective properties, it might be necessary to bring a quiet title action to establish proper title before completing the sale.

Speak with a Riverside Title Dispute Attorney Today

If you have questions regarding your property lines it is best to get them resolved before an adverse possession or title dispute arises. A qualified Riverside real estate lawyer can help. Contact Wagner Zemming Christensen, LLP, today to schedule a consultation with a member of our team.


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