Legal Question in Real Estate Law in California

Setup: By recorded deed A & B are tenants in common, and A is the trustee of their revocable trust. Per A & B's verbal agreement the property is not lived in by A or B but is leased out by A for > 5-years, with no income, expenses, or property taxes shared by B. A dies and the trustee/executrix of the will continues to lease the property as above for 1-yr and counting.

Question: Can the trust attain sole ownership by claiming Adverse Possession?

Asked on 6/28/13, 11:40 am

2 Answers from Attorneys

Anthony Roach Law Office of Anthony A. Roach

No. A tenant in common cannot gain title to the whole by way of adverse possession, either by that occupying tenant's sole possession or by leasing to third parties. "It is a fundamental rule that each tenant in common has a right to occupy the whole of the property. The possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others; and consequently one tenant in common does not, merely by exclusive possession, gain title by adverse possession against the others. Such possession will be presumed to be by permission and rightful, unless notice is brought home to the others that it has become hostile." (Russell v. Lescalet (2nd Dist. 1967) 248 Cal.App.2d 310.)

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Answered on 6/28/13, 12:10 pm

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I agree with Mr. Roach's analysis, and would only add that a trustee has an additional duty; namely, to look out for the interests of the beneficiaries in the trust property. A trustee cannot act "adversely" to the beneficiary.

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Answered on 6/29/13, 5:40 pm

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