<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Robert Moore:
Is it legal to subdivide a residential lot thru adverse posession if the deed restrictions dont allow the lot to be any smaller? How does one benefit from adverse posession where the claimed land is in the back yard of a residence?<HR></BLOCKQUOTE>
My response:
You need to sue in a "quiet title" action (Ca Civ Pro § 760.010 et seq.) which is maintained to establish or "quiet" title to or an interest in real property as between adverse claimants. [Ca Civ Pro § 760.020(a)]
The action is an appropriate remedy to establish any kind of legal or equitable right, title, estate, lien or interest in real property as against any adverse claim or cloud on title. [See Ca Civ Pro §§ 760.010(a) & 760.020(a)]
Other remedies not precluded: A quiet title action is cumulative to and not exclusive of other appropriate remedies (e.g., an action to remove a cloud on title by cancellation, below); it may be pursued in connection with any other remedy, form or right of action or proceeding for establishing or quieting title to property. [Ca Civ Pro § 760.030(a)]
Compare--action to remove cloud on title: An action to quiet title may accomplish the same objective as an action to remove a cloud on title by establishing plaintiff's interest as against adverse claimants. However, the two actions have distinct focuses and procedural requirements:
A quiet title action (Ca Civ Pro § 760.010 et seq.) ordinarily is aimed at a person asserting an adverse claim to property (see Ca Civ Pro § 762.010--"plaintiff shall name as defendants . . . the persons having adverse claims" to plaintiff's title). The action is framed simply by alleging plaintiff's ownership interest and entitlement to possession and that defendant claims an interest (any right, title, estate, lien or other interest) adverse to plaintiff without right (see Ca Civ Pro § 761.020 re essential allegations of complaint). [Wolfe v. Lipsy (1985) 163 Cal.App.3d 633, 638, 209 Cal.Rptr. 801, 804]
An action to remove a cloud on title (Ca Civil § 3412 et seq.) is aimed at a particular instrument or item of evidence. The cause of action cannot be pleaded generally (simply by alleging defendant claims an adverse interest) but, rather, must allege specific facts showing the actual invalidity of the apparently valid instrument or item of evidence clouding title. [Wolfe v. Lipsy, supra, 163 Cal.App.3d at 638, 209 Cal.Rptr. at 804-805; see Reiner v. Danial (1989) 211 Cal.App.3d 682, 689, 259 Cal.Rptr. 570, 573]
Not jury triable: A quiet title action is equitable in nature (not an "action at law") and thus is not triable by jury. [See Ca Civ Pro § 764.010--"The court shall examine into and determine the plaintiff's title against the claims of all the defendants . . ." (emphasis added); and Estate of Phelps (1990) 223 Cal.App.3d 332, 340, 273 Cal.Rptr. 2, 6-7]
Statute of limitations: The statute of limitations on a quiet title action is determined with reference to the underlying theory of relief. [Muktarian v. Barmby (1965) 63 Cal.2d 558, 560, 47 Cal.Rptr. 483, 485] Thus, e.g., where plaintiff's underlying claim is fraud or mistake, the Ca Civ Pro § 338(d) three-year limitations period applies, and commences to run upon plaintiff's discovery of the facts constituting the fraud or mistake. [Ankoanda v. Walker-Smith (1996) 44 Cal.App.4th 610, 615, 52 Cal.Rptr.2d 39, 42]
Tolling while plaintiff in possession: The statute of limitations is tolled for the period plaintiff is in possession of the subject property regardless of whether plaintiff knows during that period that there is a potential adverse claimant. The theory is that, under such circumstances, there is no reason to put plaintiff "to the expense and inconvenience of litigation" until the adverse claim is pursued. [Muktarian v. Barmby, supra, 63 Cal.2d at 560-561, 47 Cal.Rptr. at 485--"no statute of limitations runs against a plaintiff seeking to quiet title while he is in possession of the property"]
Exclusive and undisputed possession required: However, the type of "possession" required to toll the statute must be "exclusive and undisputed." [See Ankoanda v. Walker-Smith, supra, 44 Cal.App.4th at 616-618, 52 Cal.Rptr.2d att 43-44--tolling based on plaintiff's possession inapplicable where adverse claimant is joint owner of record]
Possible laches defense: Even if the statute of limitations is tolled by plaintiff's continued possession, a quiet title action may be barred under the doctrine of laches if plaintiff's delay in bringing suit has prejudiced the adverse claimant (defendant). [Muktarian v. Barmby, supra, 63 Cal.2d at 561, 47 Cal.Rptr. at 485]
IAAL
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