What is the law in California regarding adverse possession?
Full Question:
Answer:
Adverse possession is recognized as a mode of acquiring title to property, but it is not a favored one. The doctrine of adverse possession involves more than the mere barring of a remedy to the holder of title; it generally creates an absolute title to real property in fee simple, which is as good as title by patent from the state or title by deed from the record owner, although it does not amount to record title unless and until it is made so by a judicial proceeding. Thus, an adverse possession statute is not just a statute of limitations; it can also be used as a method for establishing new title.
The key to adverse possession is open and notorious possession of property without the title holder taking steps to remove you for a stated period of time. In California, the Legislature has passed precise criteria for what must be done in order to have a claim of adverse possession and the law is found in the Civil Code at Section 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 enclosure.
Second--Where it has been usually cultivated or improved.
Provided, however, that in no case shall adverse possession be considered established under the provisions 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."
Each criteria above is essential. You have to mark off the property in some obvious way to show the area you are claiming; you have to use or improve the property; you have to pay taxes on it and have done so for a minimum of five years.
Many authorities indicate that one should view adverse possession not so much as the possessor taking legal action to seize land as the title owner FAILING to take legal action for a stated period of time despite what should be obvious notice that the adverse possessor is seizing the property. In that view, adverse possession is really a form of statute of limitations in which a plaintiff is barred from taking legal action against an alleged wrong doer because the plaintiff waited too long. In this case, the title holder fails to take action for five years of obvious breach of his or her right to title on the property and the adverse possessor can no longer be the defendant for trespass or related causes of action.