What Are the Requirements for Adverse Possession in California?
Full Question:
Answer:
In California, adverse possession requires five years of continued use which is "open and notorious" and "adverse" to the owner's interest. The maintenance and upkeep and improvement of the property is required and for the five years of use the property taxes must be paid for the property being adversely possessed. Property that is occupied with the consent of the owners is not considered a hostile claim. Merely sending the possessor a note granting permission to be there will usually be enough to defeat a claim of adverse possession..
The following is a California statute:
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.
There are basically two types of easements- easements in gross and appurtenant easements. Easements in gross are personal rights given to individuals or specific groups. Once the easement owner dies or, in the case of corporations, dissolves, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.
When the title is transferred, the easement appurtenant typically remains with the property. This type of easement runs with the land; which means that if the property is bought or sold, it is bought or sold with the easement in place. The easement essentially becomes part of the legal description.
To terminate an easement, a condition for the purpose of the easement must have changed, such as:
• Easement's purpose no longer exists
• Ownership of the easement and of the land where the easement is located merges into one owner
• Land owner releases the easement
• Easement is abandoned
• Nonuse (of a prescriptive easement)
• Adverse possession by the owner of the land where the easement is located
• Court judgment in a quiet title action
• Misuse of the easement
Misuse of an easement does not usually terminate the easement but may give rise to claims for legal or equitable remedies. Legal proceedings may be necessary to interpret and determine the scope of easements.
The answer will depend on the facts and wording and nature of the current easement. It is possible the easement may need to be amended, or that the new use would terminate the easement and require a new easement to be created. I suggest contacting a local attorney who can review all of the facts and documents involved.
