Perhaps the holy grail of property law, and a question I get in an amount vastly disproportionate to its practical applications, is that of adverse possession.
I mean, the idea that you can just move into a house, perform a legal incantation, and come out the other side as the free and clear owner is an incredibly appealing one. So it’s no surprise everyone wants to know how to do it.
The History of Adverse Possession
The law of adverse possession is an ancient aspect of the English common law. Its purpose is not to reward the unscrupulous individual who moves into a home without permission, but rather to promote the utility of the underlying property.
The government does not want property to sit idle and abandoned, it wants it to be in use so that it both serves the local economy in which it sits and generates tax revenue for the state itself. A property that is left abandoned for extended periods of time is a liability to a government that depends on the tax dollars and other economic benefits that property would otherwise be generating.
As such, the concept that private property could change hands absent a sale, under certain conditions, became an incredibly useful tool for governments to rely on, especially in our country’s formidable years, when distance was a true limiting factor on a property owner’s ability to possess and maintain their land.
Over time, even as distance and communication concerns were solved by airplanes and telephones, adverse possession has stuck around as a legal tool governments can rely on when valuable private property has fallen into disrepair and the property owner is doing nothing about it.
Adverse Possession in California Today
To assert a claim of adverse possession in California, there are five elements that must be established by the adverse possessor:
1. Actual Possession — The party must be in physical possession of the land. It’s not enough to hold a title instrument or some other legal interest that exists only on paper. You must physically occupy and use the property.
2. Open and Notorious — The possession must be obvious. It’s not enough to build a little shack on the far edge of the property that no one ever sees, you have to make it clear to the world that you’re treating this land as your own.
3. Continuous — Possession must be continuous for the statutory period. In California, that means five years of uninterrupted physical presence and control. You can, of course, leave to buy groceries or go about normal life, but you must maintain dominion over the land every day from year one through year five.
4. Hostile — Now, you don’t have to defend your property with threats of violence, that’s not what this means. Rather, the possession must be hostile in the sense that you cannot have the rightful owner’s permission to be present. If the owner grants you permission to be on the property, any claim of adverse possession is completely destroyed.
5. Payment of Property Taxes — And here’s the kicker. Like I said, adverse possession doesn’t exist to help you, it exists to help the government. During your time possessing the property, you’re on the hook for the property taxes that would have been paid by the rightful owner. Miss a single year, and your claim fails. And if your claim fails for any reason, don’t expect a refund. Just like how the house always wins at the casino, in matters of law, the state always wins.
A Quick Hypothetical
So, you find yourself in the position to possess a piece of private land. (And by the way, I forgot to mention, you can’t adversely possess government land, so don’t go setting up shop in Yosemite thinking it’ll be yours in only five short years.)
The owner has left the property vacant for some time and, for all intents and purposes, has abandoned it. So you decide to set up shop and start your claim. The first day you step foot onto the property with the intention to remain there is the day the clock starts ticking on the five-year requirement.
You build a house, live openly as the owner, and pay your property taxes on time each year, which the state gladly accepts. With this set of facts, after five years you could go to court, file your documents, and become the rightful owner of that property. Simple as that, right?
Well, the reality is that the facts I just described are highly uncommon. Five years is a long time, and in that time life happens, the rightful owner returns, or a whole host of other things interrupt your possession, which must be continuous, remember. It’s more than likely that even something like a short hospital stay, through no fault of your own, that requires an extended absence from the property could destroy your claim, even in the eleventh month of the final year of the five-year period.
Conclusion
Like I said before, the government isn’t running a charity with adverse possession. They want money, and as such they’ve set up the system to be nearly impossible to complete except for the most well-capitalized parties that maximize the likelihood for their economic benefit.
Nevertheless, the law still stands, and therefore it’s not impossible. If you find yourself in this position, either as the adverse possessor or the rightful property owner, you don’t want to go it alone. Hire an attorney who can fight for you and your rights. The stakes are high for both sides, and the longer it drags on, the higher the costs climb.
-Alex Murad Esq.