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ADVERSE POSSESSION.
Term Paper ID:18987
Essay Subject:
Legal analysis of cases involving changing ownership of land under special circumstances. Title actions, taxes, loans, types of occupation. 19 cases.... More...
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Paper Abstract:
Legal analysis of cases involving changing ownership of land under special circumstances. Title actions, taxes, loans, types of occupation. 19 cases.
Paper Introduction:
1. Introduction
Adverse possession is a system whereby the occupation of another's land gains the occupier title, but only if the occupation is indeed wrongful.1 Though the adverse possessor gains legal title, it is not likely to be "marketable" title for a purchase because (1) the title is subject to litigation and (2) conveyancers generally have the notion that title must be marketable of record. The only certain way to make the title marketable is to establish a paper record by a favorable court decision.2 The two aspects to consider are the statutory requirements, including the statutory period, and the doctrine of adverse possession, which is a judicial gloss on the statute.3 "The theory upon which adverse possession rests is that the adverse possessor may acquire title at such time as an action in
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Rptr. 287 (19 ). Rptr. The shortest period for prevail in a quiet title action in Californiais the statutory minimum of five years. 33Black's Law Dictionary 297 (5th ed. Cunningham, W. 587, 296 P. 5Id. Day, 264 Cal. 27Lobro v. Generally, possession is defined as the actual use ofproperty as the average owner would use it, so that the neighbors wouldregard the occupant as exercising exclusive dominions Adverse possessionmay exist if the average owner would use the particular type of property inthe same manner as the adverse possessor, even though the occupant does notreside on the property and for long periods does not use it at all.11 In Ewing v. 587, 296 P. 2d 774, 199 P.2d 689 (1948). Rptr. 38 (19 8). 26 (1968). 3d 691, 16 Cal. App. 1988). B. Allen, 17 Cal. 2d 329, 65 P.2d 351 (1937).Park v. Burnet, 36 U.S. Sweitzer, 8 Cal. When claimingunder a title founded upon a written instrument, judgment or decree, therequirements to be met for the purpose of constituting an adversepossession are as follows: 1) Where [the land] has been usually cultivated or improved; 2) Where [the land] has been protected by a substantial enclosure; 3) Where, although not inclosed, [the land] has been used for the supply of fuel, or of fencing-timber for the purposes of husbandry, or for pasturage, or for the ordinary use of the occupant; 4) Where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared, or not inclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.7 The California Code of Civil Procedure §325 gives the statutoryrequirements with respect to adverse possession under no color of title asfollows: 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. App. Thecommon law elements are the foundational requirements, whereas thestatutory law helps to define how the elements can be satisfied. Any kind of permissiveuse, as by a tenant, licensee, contract purchaser in possession, oreasement holder is rightful, not hostile, and does not ripen into adversepossession.18 D. Continuous and Uninterrupted Possession Whether possession is continuous and uninterrupted depends on the usefor which the land is suited. Rptr. App. Costa, 32 Cal. App. App. B. Is it possible to get a loan against property before the five year period by a future promise to pay or trust deed to be recorded after the fact There are two ways to look at this question: (1) that the adversepossessor knows he does not have a claim of right to the property butattempts to obtain a loan with a future promise to pay or to record a trustdeed after the fact or (2) that despite the adverse possessor knowing hedoes not have a claim of right to the property, he believes he will meetall the elements necessary to establish adverse possession in the futureand this expectancy is a property interest which he will use as collateral. Cohn, 122 Cal. Stevens, 2 4 Cal. at 757. E. Krier, Property 87 (2d ed. App. App. 17Kraemer v. 692 (1919). 4 (1924).Davis v. 9Finley v. Cunningham, W. 37Davis v. 763, 183 P. 22Park v. Stoebuck and D. 24Elliott v. App. Watson, 42 Cal. Dukeminier and J. Whitman, The Law ofProperty at 758-759. App. 3d 945, 251 Cal. Burnet, adverse possession was established when a manunder color and claim of title paid taxes on an unimproved lot inCincinnati which was used principally for digging sand and gravel. 6Id. This doctrine,however, cannot be extended to apply to a mortgagor accepting the propertyas collateral for a loan. Will a quiet title action be successful when not all of the elements are met? Watson, the court found that property wasacquired by adverse possession where the elements were met and the realproperty was continuously occupied for 25 years.27 The plaintiff and hiswife occupied real property and made additions to the property, fenced thelot, replaced the roof, and paid all taxes which were assessed. 587 (1988). Locher, 222 Cal. 4 5 (1975).Scott v.. It has been found that where inclosed landsuitable for grazing and pasturage is occupied each year during the seasonfrom May until October or November, possession is deemed continuous.22 Thecriterion upon which this element is judged is whether the record ownerwould have been in continuous possession of the property. (11 Pet.) 41 (1837). Kraemer, 167 Cal. 362 (1928).Kraemer v. A. 3d 691, 16 Cal.Rptr. Introduction Adverse possession is a system whereby the occupation of another'sland gains the occupier title, but only if the occupation is indeedwrongful.1 Though the adverse possessor gains legal title, it is notlikely to be "marketable" title for a purchase because (1) the title issubject to litigation and (2) conveyancers generally have the notion thattitle must be marketable of record. Watson, 42 Cal. Kell, 67 Cal. 2 Safwrenberg v. 2d 69 , 42 P.2d 75 (1935).Safwrenberg v. Yuba County Water Dist., 99 Cal. 238, 263 P. 513, 123 P. Rptr. 734, 228 P. 692 (1919).Ewing v. Kraemer, 167 Cal. Marquez, 5 Cal. 32Sorenson v. The claim of title is a state ofmind, and there are three different standards: (1) the objective standardis that state of mind is irrelevant and is a view held in England; (2) thesecond standard is known as the aggressive trespasser standard, where theclaimant thought he did not own the property but intended to take it. Inaddition, he dug sand and gravel from the lot and allowed others to do soand brought actions for trespass against others for doing so without hispermission.12 A California case found that adverse possession was notestablished when a claimant paid the taxes on two unimproved city lots,visited the lots from four to six times a year to look around the property,planted two rose bushes and four trees, and one year cleaned the brush offthe lots.13 Courts have found that fences and walls are not essential, thoughmarks that indicate boundaries of possession, such as partial fence lines,mowed grass, cultivation lines, trees or shrubs, paved areas, or otherimprovements which suggest bounds are factors to be considered,14 whetherthere was actual physical occupation. 3d 3 1, 123 Cal. App. Rptr. 2d 453, 196 P.2d 9 (1948).Tobin v. 1 R. 29Id. In a situation where an individual who has notitle to the described land delivers a deed, or who has a lesser interestthan the deed purports to convey, estoppel by deed works to permits themortgagor to sue the adverse possessor and compel a new conveyance fromhim. Yuba County Water Dist., 99 Cal. App. at 89. 38Palin v. App. Clearing of debris and weeds from land on one occasion was notsufficient evidence of improvement to raise the presumption of adversepossession.36 There is a split of authority with respect to fences. Using this view, it is unlikely that a future promise to pay ora trust deed to be recorded after the fact would be used as collateral toobtain a loan. Second--Where it has been usually cultivated or improved. A. App. Whitman, The Law ofProperty at 76 . Property (2d ed. However, the plaintiffdid such acts under a claim of title, pursuant to a sales contract, and didnot claim adversely to the record owners. Plaintiffestablished right to the property, even though his wife's brother-in-law'swife, who was the record owner, was not aware of any right to the property. 14R. 1983). Endnotes 1R. 31Sorenson v. It has beendecided that seasonal occupation constitutes continuous occupation forsummer or vacation property or other seasonal activity. A. Whitman, The Law ofProperty 757 (1984). Powers, 2 Cal. Forinstance, the common law element of actual, open and notorious possessioncan be satisfied by a substantial enclosure or improvement, as provided inthe statute. 2d 69 , 42 P.2d 75 (1935). 23Tobin v. 34City of Gilroy v. 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.The five year prescriptive period for adverse possession begins to run whenthe cause of action accrues, that is, when the owner is deprived ofpossessions.8 The common law further delineates the elements required to establishtitle by adverse possession as follows: 1) possession by actual, open and notorious occupation under circumstances sufficient to constitute reasonable notice to the owner's title; 2) possession hostile to the owner's title; 3) possession whereby the holder claims the property as his own under either color of title or claim of right; 4) continuous and uninterrupted possession for five years; and 5) the holder has paid all taxes levied on the property during those five years.9 The common law and the statutory law complement each other. F. BibliographyBooksBlack's Law Dictionary (5th ed. Since the mortgagorwill likely not be ignorant of the true facts, estoppel by deed would notbe a remedy for a mortgagor if the mortgagee promises to pay in the futureor to record a trust deed after the fact. 1983).California Code of Civil Procedure, §323.Cunningham, R. 5 8, 12 P. A. B. Requirements ofpossession giving rise to title to property by adverse possession are morestringent where the adverse possessor acts under mere claim of right thanif he occupies under color of title.19 Adverse possession under color of title is founded on writteninstrument, judgment or decree which purports to convey land but which isfor some reason defective.2 Even though the requirement of Claim of Right is not expressed in theCalifornia statutes, courts have read such a requirement into the statutesthrough the common law where the claimant does not possess a writteninstrument with respect to the property. Stoebuck and D. The shortest and longest times for successful quiet title actions Statutes of limitations for periods of 2 years were oncecommonplace, but they are being replaced by statutes with shorter periods,in the range of 6 to 1 years.26 Common law indicates that a period oftwenty five years may be the longest time deemed to establish title to landadversely possessed. A. 7 4, 1 P.2d 531 (1932). 3d 18 , 116 Cal. Warden, 111 Cal. 294 (1912). 2d 291, 334 P.2d 675(1959). Stoebuck and D. 3 Dresser v. Case law indicates that all elements must be met. Estoppel ordinarily presupposes reasonable reliance by the innocentparty on the other's representations, so the mortgagor must be ignorant ofthe true facts in order for estoppel by deed to apply. B. App. The purpose of this element isto afford the owner opportunity for notice. 513, 123 P. The case law can be reconciled. 13Madson v. 15Klein v. "Open and notorious" possession usually means possession that givesvisible evidence to one on the surface of the possessed land. 1988).CasesCity of Gilroy v. Day, 264 Cal. McIntosh, 41 Cal. Locher, 222 Cal. 2d 278, 7 Cal. 2Id. 362 (1928). (11 Pet.) 41 (1837).Finley v. 7California Code of Civil Procedure, §323. The only certain way to make the titlemarketable is to establish a paper record by a favorable court decision.2The two aspects to consider are the statutory requirements, including thestatutory period, and the doctrine of adverse possession, which is ajudicial gloss on the statute.3 "The theory upon which adverse possessionrests is that the adverse possessor may acquire title at such time as anaction in ejectment by the record owner would be barred by the statute oflimitations."4 Based upon this theory, one purpose of the adversepossession system is "that there should be a restricted duration for theassertion of 'aging claims,' and that the elapse of a reasonable timeshould assure security to a person claiming to be an owner."5 Otherpurposes of adverse possession are to "quiet all titles which are openlyand consistently asserted, to provide proof of meritorious titles, andcorrect errors in conveyancing."62. Cohn, 122 Cal. 26Dukeminier and Krier, Property at 89. 21Dukeminier and Krier, Property at 1 1. B., and Whitman, D. 734, 228 P. If there are no outward showings of use or possession, thenpossession must be shown by an enclosure or improvements. 423 (1979). Color of Title or Claim of Right Color of Title requires a written instrument, whereas Claim of Rightdoes not. Crump, 162 Cal. App. 38 (19 8).Dresser v. Whitman, The Law ofProperty at 758. Forinstance, a plaintiff had been in possession of property for 14 years, paidtaxes on the property and inclosed the property. App. App. A. In Lobro v. App. Dunn, 9 Cal. Seccombe, 88 Cal. 8Sevier v. 12Ewing v. The court has found that the existence of a pipe line todivert water from a stream satisfied the requirement of a substantialenclosure or "usual improvements."34 However, a reservoir erected by anadverse possessor did not satisfy the "improvement" requirement.35 Thisfinding was based on several conditions: (1) the adverse possessor had notused the reservoir for irrigating purposes but only to water stock, (2) thepipes leading from the reservoir had been unfit for use, (3) the reservoirwas not inclosed by a fence, and (4) other stock raisers used it as well asclaimant. 5 8, 12 P.65 (1911). E. Costa, 32 Cal. Dunn, 9 Cal. at 757, note 1. Holder has Paid All Taxes It has been held that a possessor's failure to pay taxes on propertyhe was occupying foreclosed his claim of title by adverse possession.23However, failure to pay taxes where none are levied does not defeat a claimof adverse possession.24 Nevertheless, payment of taxes on a vacant lot did not show adversepossession.25 If taxes are paid and no other elements of adversepossession are met, then claimant is unlikely to obtain title to landthrough adverse possession.3. Whitman, The Law ofProperty at 758. 352, 99 P. 2d 453, 196 P.2d 9 (1948). A. Cunningham, W. 2d 291, 334 P.2d 675 (1959).Landini v. Rptr. Sweitzer, 8 Cal. An individual may establish title by adverse possession for a timeless than five years if the individual can tack on another person'spossession to his own, to establish continuity of possession for the fiveyear period. 423 (1979).Huling v. Marquez, 5 Cal. Burnet, 36 U.S. 36Scott v. 763, 183 P. 533 (1974). 533 (1974).Madson v. 352, 99 P. McIntosh, 41 Cal. A. A. 1. App. Cunningham, W. 3d 1 82, 272 Cal. 3Id. In the second case, the adverse possessor has an expectant right,which is defined as "a contingent right, not vested; one which depends onthe continued existence of the present condition of things until thehappening of some future event."33 Because the record owner can initiate aproceeding to remove the adverse possessor any time up to the statutoryperiod of five years, the adverse possessor has no legal right to theproperty until the five years has run. 238, 263 P. 3d 18 , 116 Cal. App. E. Because plaintiff's possessionwas not hostile to the record title of the true owners, plaintiff did notacquire title by adverse possession even though plaintiff possessed theproperty for 14 years.3 If all elements are met, then the minimum timerequired by statute for adverse possession is five years. App. App. Hostile to the Owner's Title The requirement of "hostility" means that the adverse possessor'spossession must be adverse to the record owner, unaccompanied by anyrecognition, express or inferable from the circumstance, of right in therecord owner.17 Possession is without permission of the one legallyempowered to give possession, usually the owner. 35Dean v. Actual, Open and Notorious Occupation Actual possession requires some degree of physical occupation.Possessory acts must be substantial and must leave some physical evidence,not only to be actual but also to meet the overlapping requirement thatthey be "open and notorious."1 Whether actual use of the propertyconstitutes open and notorious occupation is a question of fact that mustbe proved by evidence and is contingent on what the property is and shouldbe used for. 26 (1968).Lobro v. 95 (1931). In the first case, if the adverse possessor knows he has no claim of rightto the property which he is adversely possessing, and the claim of right isa requirement that must be met in order to prevail in a quiet title action,then the statute of limitations has not begun to run and therefore theclaimant would have no basis on which to claim any interest in theproperty. Thethird standard is the good-faith standard where the required state of mindis "I thought I owned it."21 California generally follows the good faithstandard. occupation isnot open and notorious when possession is of a cave or possessory acts arecarried out only under cover of darkness. 11Dukeminier and Krier, Property at 1 . Inclosure of apiece of land by a substantial fence has been found to be an improvement orinclosure.37 On the other hand, land used for cattle pasturage need not beentirely inclosed by a fence if the natural barriers of the land aresufficient enclosures to turn cattle.38 To constitute an improvement which would distinguish property from avacant lot, an adverse possessor would have to substantially inclose theproperty with a fence or erect a pipeline to divert water. Caswell, 88 Cal. In order to tack on another's possession, some form ofprivity between the successive claimants is necessary.31 Privity may existwithout a writing where one by agreement actually surrenders his possessionto another in such manner that no interruption or interval occurs betweenthe two possessions.324. 587 (1988).----------------------- 2 294 (1912).Dean v. A. Kell, 67 Cal. App. 16R. Rptr. What are the main differences between vacant land and improved property in terms of minimum requirements The minimum requirements for improvements vary depending on the landand its uses. Reasonable Notice to the Owner's Title The adverse possession must be so open, notorious and continuous asto give notice to others that it is hostile to the record owner, and mustbe such as to indicate a claim of right, at least to the extent of puttinga prudent man upon inquiry.15 The record owner need not actually haveseen the evidence but is charged with seeing what reasonable inspectionwould disclose.16 C. 25Huling v. 2d 278, 7 Cal. 7 4, 1 P.2d 531 (1932).Palin v. 3d 1 82, 272 Cal. Stevens, 2 4 Cal. 28R. Rptr. 287 (19 ) .Sorenson v. B. 29Landini v. Cunningham, W. Rptr. A., Stoebuck, W. Warden, 111 Cal. 2d 329, 65 P.2d 351 (1937). App. App. 4 5(1975). A. Planting anoccasional plant would likely not be sufficient to distinguish the propertyfrom a vacant lot. App. A. Because the adverse possessor does not have the required state ofmind to meet the elements of adverse possession, the record title ownercould remove the adverse possessor at any time prior to the statutorylimitation, and because estoppel by deed cannot be applied in this case, itwould not be possible to obtain a loan under such conditions.5. Stoebuck and D. If the adverse possessor uses theland in the same way as the true owner would use it, no enclosure need beerected. However, digging up sand and gravel from a vacant lotwould satisfy the requirement of actual possession, if digging up sand andgravel were a use to which an owner would put the land. Stoebuck and D. B. Seccombe, 88 Cal. 95 (1931).Sevier v. Crump, 162 Cal. The doctrine of estoppel by deed would normally cure any defects in agrantor's interest in property by estopping the grantor from claiming hedid not convey all the title he purported to convey. Powers, 2 Cal. App, 3d 945, 251 Cal. The Law of Property (1984).Dukeminier, J., and Krier, J. 18Id. at 86-87. Therefore, thetolling provisions may more or less delay the statute's running and sodelay acquisition of title.29 If any of the elements are not met with respect to adversepossession, then the duration of actual occupancy is irrelevant and evenduration exceeding the statutory minimum would be not sufficient. App. App. 4 (1924). Rptr. Statutes that shorten the normallimitation period, such as California, sometimes require "color of title"or payment of taxes.28 Statutes of limitations contain various tolling conditions, such asfor owners who are insane, infants, imprisoned, absent from the state, orin military service when the cause of action first accrues. Color of Title requires fewer elements (four elements) to be metin order to prevail in a quiet title action (see California Code of CivilProcedure §323 above) than Claim of Right (five elements). Costa. 4J. 3d 3 1, 123 Cal. Allen, 17 Cal. Some elements area question of fact and satisfaction of such an element may be determined ona case-by-case basis or be dependent upon or influenced by the factualdetermination of the other elements. 65 (1911).Elliott v. To provide proof of meritorious titles or to correct errors inconveyancing, a claimant through adverse possession may claim either undera defective title or under no writing instrument at all.
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