How can I stay in my home under the squatter's rights if my home is in foreclosure?
Full Question:
Answer:
Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state, and is 5 years in CA. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states, such as CA, require the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement.
It is said that continued possession by the landowner after a judicial sale is not adverse to the purchaser and that he is merely a tenant at sufferance of the purchaser and that therefore the statute would not begin to run until conclusion of the foreclosure proceedings. Nevertheless an adverse possession may be established by open and hostile acts of the owner asserting a title of his own.
In2 C.J.S., Adverse Possession, § 105, p. 659, it is stated:
"The owner's continued possession after sale of the property at execution, judicial, or like sale is that of a tenant at sufferance of the purchaser, and is not hostile to the purchaser without a clear repudiation of his title and assertion of hostile claim, and in the absence of all testimony manifesting the actual character of his holding, his possession is regarded as consistent with the title of the purchaser.
"There is nothing in the relation of the parties to preclude the original owner from converting his amicable into a hostile possession, and the possession of the judgment debtor may be hostile to the purchaser under a judgment so as to ripen into adversary title where it is shown that the possessor has claimed title in himself openly and notoriously for the statutory period.
"The possession of the heirs of a purchaser's grantees, after sale on foreclosure of a vendor's lien, to which they or the grantee are not parties, has been held sufficient to start the running of limitations in their favor against the purchaser at such sale."
The following are CA statutes:
318.
No action for the recovery of real property, or for the
recovery of the possession thereof, can be maintained, unless it
appear that the plaintiff, his ancestor, predecessor, or grantor, was
seized or possessed of the property in question, within five years
before the commencement of the action.
323.
For the purpose of constituting an adverse possession by any
person claiming a title founded upon a written instrument, or a
judgment or decree, land is deemed to have been possessed and
occupied in the following cases:
1. Where it has been usually cultivated or improved;
2. Where it has been protected by a substantial inclosure;
3. Where, although not inclosed, it has been used for the supply
of fuel, or of fencing timber for the purposes of husbandry, or for
pasturage, or for the ordinary use of the occupant;
4. Where a known farm or single lot has been partly improved, the
portion of such farm or lot that may have been left not cleared, or
not inclosed according to the usual course and custom of the
adjoining country, shall be deemed to have been occupied for the same
length of time as the part improved and cultivated.
325.
For the purpose of constituting an adverse possession by a
person claiming title, not founded upon a written instrument,
judgment, or decree, land is deemed to have been possessed and
occupied in the following cases only:
First--Where it has been protected by a substantial inclosure.
Second--Where it has been usually cultivated or improved.
Provided, however, that in no case shall adverse possession be
considered established under the provision of any section or sections
of this Code, unless it shall be shown that the land has been
occupied and claimed for the period of five years continuously, and
the party or persons, their predecessors and grantors, have paid all
the taxes, State, county, or municipal, which have been levied and
assessed upon such land.
