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California Adverse Possession And Co Owners- What It takes To Adversely Possesses The Property Against Your Co Owner

Adverse Possession, like prescriptive easements, require a party to “possess” or use the property in a way that gives notice to the world of their intent. But co-owners -regardless of their percentage of ownership, or if they are tenants in common or joint tenants- all have an equal right to possession of the property. A recent Third District decision points out how difficult it is to adversely poses a co-owner, and why owners in this situation should consult with an experienced Sacramento, Yolo, or San Joaquin, Real Estate Lawyers.

In Hacienda Ranch Homes v. Sup. Court, the person claiming adverse possession (“the Possessor,” for short) had bought an undivided 25% interest in undeveloped property in San Joaquin County. Six years later they filed this action to establish their title to 100 percent based on adverse possession against the other owners. They based their claim on their conduct- they removed weeds and grasses by discing the property two to three times a year, posted a “for Sale” sign near (but not on) the property; and paid all the property taxes.

Empty field.jpg The court of appeal listed the requirements for showing adverse possession but then noted that, where adverse possession is asserted against a cotenant, additional principles apply. As each cotenant has a right to possess, and the possession of one is deemed the possession of all,, each may assume that a possessor IS possessing for all. Thus the Possessor must show an ouster of the cotenant- strong evidence that shows they brought home to the cotenant that he intends to oust the cotenant. The evidence must be of acts of ownership of the “most open, notorious and unequivocal character.” Whether ouster has been established is a question of law, not of fact, for the judge and not for a jury to decide.

The court found that the Possessor did not do enough. They never excluded the cotenants from the property, or put up a fence or barrier. Occasional discing could be seen as routine maintenance for the benefit of all cosecants. Lastly, the “for sale” sign did not clearly notify the tenants of an unequivocal and hostile claim. What is enough? I was involved in a case where my clients were run off with a gun by their cotenant, who them blocked access. In these cases, courts really need aggressive behavior to ensure the cotenants know what is going on. Quietly waiting for the statute of limitations to run before making the claim for adverse possession, such as was done in Hacienda, is not reward by the courts.