Getting a Court Order for Adverse Possession in California

Adverse possession is the open and notorious use of land against the original legal owner's rights. "Notorious" translates to obvious and consistent, not necessarily hostile. Legally, anyone can be an adverse possessor, including an individual, a corporation, the federal government, the state, or a municipal corporation. Although adverse possession can be a deliberate act against the true owner, often trespasser is under the mistaken presumption that he or she owns the occupied land. this situation may occur where land boundaries have not been fully or properly established.

Under many state laws, if a trespasser has shown possession adverse to the true owner for a period of time, the trespasser may make a claim to the land. California's Civil Procedure Coderequires that the land at issue has been adversely occupied and claimed for the period of five years continuously, and the trespassing party or claimant has paid all state. county and municipal taxes levied against the land.

Adverse Possession in California

§ 321. Possession, when presumed: Occupation deemed under legal title, unless adverse

In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title, for five years before the commencement of the action.

§ 322. Occupation under written instrument or judgment, when deemed adverse

When it appears that the occupant, or those under whom he claims, entered into thepossession of the property under claim of title, exclusive of other right, founding such claim upon a written instrument, as being a conveyance of the property in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the property included in such instrument, decree, or judgment, or of some part of the property, under such claim, for five years, the property so included is deemed to have been held adversely, except that when it consists of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot of the same tract.

§ 324. Premises actually occupied under claim of title deemed to be held adversely

Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment, or decree, the land so actually occupied, and no other, is deemed to have been held adversely.

Court Order to Remove Trespasser

If a legal owner believesa trespasser may make a claim of adverse possession, they should immediately seek a lawyer. The owner may need to file a lawsuit to seek ejection of the trespasser from the land. The owner can request a court order to stipulate that the person stay away from the property. The owner can also request a court order to remove any structure erected by the trespasser. However, the owner must act before the trespasser can statutorily make a successful claim to the land.

Talk with an Attorney

In California, you must act within five years to protect your land from the claim of an adverse possessor. Talk with an experienced attorney to determine your rights in this situation.