You may remember hearing stories about the old days in the Wild West when people could take control of someone else’s empty land and have it become theirs. In modern times, possession can still lead to ownership, which means that even the most expensive of San Diego real estate can still fall into the hands of another, and all without paying a penny to the owner on title. The beginnings of adverse possession actually started long before the American Old West even existed, and traces back to old English law during feudal times, when starving peasants cultivated and lived on portions of property that wealthy landowners had left unexploited. In part, adverse possession law survives throughout the country (including California) because of its underlying principle that land should be put to use, and if its owner seems to have abandoned the property, then someone else should develop it. Today, this reasoning doesn’t apply as well as it did during the settlement of the Old West or in feudal England, especially since most adverse possession claims aren’t brought to claim ownership of an entire property, and instead come up more often in boundary disputes between neighbors.
Adverse possession laws continue to change and every state has its own rules for establishing adverse possession, but in a “quiet title” action, California generally requires the possessor to prove that the possession was actual, open, hostile, continuous, and exclusive. Without going into too much detail, this means that there must be an occupation of the land, and the possession has to be obvious to a property owner who might inspect the property or to anyone else (such as when a trespasser paves the driveway, plants a garden or crops, fences the owner out of a strip of his property, or lives on the property). Also, the trespasser can’t share the land with the owner or strangers, except that if the trespasser leaves and another takes over the land, the possession can still be considered to continue if the trespasser had sold or given the property to that person. In these cases, the time the first trespasser spent on the property can pass to the new possessor. Some states will also look at the intent of the person in possession, and require that the possessor know he’s trespassing, while a few others instead require that the trespasser be innocently mistaken about ownership. California law additionally requires that the claimed land be designated clearly enough and be improved or cultivated. For many would-be adverse possessors, California’s biggest hurdle to ownership is our state’s requirement that the trespasser pay all of the property’s taxes and assessments (so the truth is that a squatter doesn’t get the land completely free). All of these requirements have to have been continually met for at least 5 years for a California adverse possession claim to be successful. If this happens to property you bought, then you can lose your real estate despite the fact that you have signed legal documents clearly stating that you own the property.
If you’re a property owner, be on the lookout for squatters and trespassers, because potential ownership claims over your real estate may be on the horizon. Owners with vacant property are not the only ones at risk, because there could be something less obvious and less drastic happening than someone taking over your entire property through adverse possession. For example, a neighbor may have recently constructed a fence that encroaches on your property line, paved a driveway on your land, built an extra room or other structure on your property, or simply have taken over the landscaping of a strip of your land. What’s more, even if the requirements for adverse possession are not met, a trespasser may be able to gain a right to use your property. In this situation, the person using the property may get a “prescriptive easement” because of their use of your property for a specific purpose. There are many different types of easements, but a prescriptive easement can sometimes be created if people have been using your property without your permission over a period of time. The existence of the easement may hurt the value of your real estate, so it’s important to take the steps needed early on. There are ways to allow the use of your property in writing, and without risking the creation of an easement. Not only that, but if an easement is created on your property, you can end up being responsible to another for any damage you cause to the easement. If you’re a property owner, protect your investment’s value and don’t ignore encroachments on your property, because letting time pass can be dangerous. If you believe you’ve gained the right to use a property, or even ownership in it, we’ll assess your case and seek the best route to perfect your interest. In any real estate dispute, we’ll advise you and help negotiate or otherwise resolve the matter as quickly as possible. As soon as a boundary dispute or other property concern arises, safeguard your interests and contact San Diego Law Firm’s experienced real estate lawyers at (619) 794-0243.
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