My neighbors suddenly claim that they own our yard beyond our existing old fence which were built about 40 years ago. But as we know that our previous owner was using the land for 40 years as their own with the original land owner's permission because the original owner did not needed the slopes. We believe since it's been 40 years of possession, the land is our previous owner's property by adverbs possession, thus it's became our land when we purchase this house. When we purchase this house, the previous owner told us that the property boundary is the old fence and they own the land up to the old fence. Is there any case about it? And can we keep our land? We'd like to know the details about the "adverbs possession." Thank you for your help.
4 Answers from Attorneys
STATUTORY BASIS OF ADVERSE POSSESSION:
The key to adverse possession is “open and notorious” possession of property without the title holder taking steps to remove you for a stated period of time. In California, the Legislature has passed precise criteria for what must be done in order to have a claim of adverse possession and the law is found in the Civil Code at Section 325 and is quoted in full below (as of May, 2003.)
§ 325. Adverse possession; claim of title not founded upon written instrument, etc.; occupancy of land
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 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.
Each criteria above is essential. You have to mark off the property in some obvious way to show the area you are claiming; you have to use or improve the property; you have to pay taxes on it and have done so for a minimum of five years.
Many authorities indicate that one should view adverse possession not so much as the possessor taking legal action to seize land as the title owner FAILING to take legal action for a stated period of time despite what should be obvious notice that the adverse possessor is seizing the property. In that view, adverse possession is really a form of statute of limitations in which a plaintiff is barred from taking legal action against an alleged wrong doer because the plaintiff waited too long. In this case, the title holder fails to take action for five years of obvious breach of his or her right to title on the property and the adverse possessor can no longer be the defendant for trespass or related causes of action.
I have litigated adverse possession from both sides (no pun intended). You may give me a call to discuss briefly.
Daniel Bakondi, Esq.
The Law Office of Daniel Bakondi, APLC
870 Market Street, Suite 1161
San Francisco CA 94102
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Mr. Besser leaves out a very important piece of the adverse possession puzzle - adversity. He only quotes you the section on what constitutes possession. The problem you face is that the possession may not have been adverse, and you don't say how long it was held by you. You state that your predecessor in interest and the original owner of the other parcel had an agreement that you predecessor could use the property. That defeats adversity. Until you and/or your predecessor in interest have ADVERSELY held the property for five years, you have no right to it. If you and the present record owner of the land have both held your respective properties for five years and you have occupied his land over his objection for that time, THEN you get to the rest of the adverse possession analysis. The other problem that Mr. Besser mentions but fails to address, is the taxes issue. Once you have satisfied the adversity element, you will still need to make sure that the county assessor has assessed that part of the property to you in calculating taxes. If not, again, adverse possession will not stand.
I agree with Mr. McCormick. You are talking about the doctrine of "adverse possession" not "adverbs possession." An adverb is word that modifies a word, other than a noun.
I doubt that you have paid property taxes on the parcel you now claim to own. Additionally, consent to use the parcel defeats any adverse possession claim. You may have an easement, however, depending on the nature of the permission given to you by the prior owner to use the property.