Practicing Real Estate & Business Law
since 1986
Fisher Law Corporation’s Frequently Asked Questions
The following are select subjects which are representative of the type of law we practice. Peruse the articles: If you don't find a subject that interests you, call us or e-mail us with your request.
Notice: The information contained in these articles is designed to provide accurate information in regard to the subject matters covered and is made available with the understanding that the information provided does not constitute the rendering of legal or professional services. All information is of a general nature, is specific to California law only, and is not intended to to replace professional or legal advice. Each person’s situation is unique and the information contained herein cannot be applied to any individual’s situation. If legal advise is required, the services of a professional should be sought.
|
Q. What is Adverse Possession?
A. Adverse possession is the acquisition of title to real property by continuous possession for the prescribed period of time. To establish title by adverse possession, the user must prove that he has satisfied each and all of the following five requirements:
(1) His possession was held either under a claim of right or color of title;
(2) He was in actual, open, and notorious occupation of the premises in such a manner as to constitute reasonable notice to the record owner;
(3) His occupation was both exclusive and hostile to the title of the true owner;
(4) His possession was uninterrupted and continued for at least five years; and
(5) He paid all taxes assessed against the property during such five year period.
Each of these facts must be proved in order to establish adverse possession. A new title is not established if the possessor fails to prove any one of the required elements, even though all of the others have been established. When the owner establishes that he holds the legal title, the possessor has the burden of proving each of the elements necessary to acquire title by adverse possession.
The conduct required to acquire title by adverse possession, or a right of use by prescription, such as a prescriptive easement, is generally the same. The major differences are as follows:
1. There is no need to pay taxes to acquire a right by prescription if they are not separately assessed to the area being used, whereas the payment of taxes is an essential element for adverse possession.
2. To prove the necessary elements for a prescriptive easement it is not necessary to prove exclusive use. The elements for a prescriptive easement are based more on the hostile conduct of the party making the claim; whereas, for adverse possession, the user must establish exclusive possession of the area claimed.
3. When title is claimed by adverse possession based on a written instrument (color of title) and only a portion of the property described in the instrument is actually occupied, as long as the unoccupied portion is not possessed by another, under the doctrine of constructive possession, the claimant can acquire title to the entire property described in the instrument. However, in the case of a claim to a prescriptive easement, even if the claim is based on a written instrument, the prescriptive right is limited to the area actually occupied, and not the entire area described in the instrument.
The title established by adverse possession is a new, absolute fee title; the adverse possessor is not a successor in interest of the former owner even though his title may be of the same nature and extent.
“The administration of justice is the firmest pillar of government.”