weird situation with boundary question

[bbear401]

here is another snipet of a cali case that refers to color of title

Marriage v. Keener (1994) 26 Cal.App.4th 186 , 31 Cal.Rptr.2d 511

[6] "To establish title by adverse possession, the claimant must establish the following five requirements: 1) Possession under claim of right or color of title; 2) actual, open, and notorious occupation of the premises in such a manner as to constitute reasonable notice to the true owner; 3) possession which is adverse and hostile to the true owner; 4) possession which is uninterrupted and continuous for at least five years; and 5) payment of all taxes assessed against the property during the five-year period. [Citations.]" (Buic v. Buic (1992) 5 Cal.App.4th 1600 , 1604 [7 Cal.Rptr.2d 738].) Equity abhors a forfeiture (Hopkins v. Woodward (1932) 216 Cal. 619, 622 [274 P.2d 172]), and all presumptions favor the record [26 Cal.App.4th 193] owner of the property. (Clark v. Stotts (1954) 127 Cal.App.2d 589 , 592 [274 P.2d 172].) [2d] Since all doubts are resolved against the adverse possessor, it appears any prejudice resulting from the loss of these witnesses' testimony will cause detriment to Valerie, not defendants.


property law as all law is mesy,,beware were you get your advice
bill

 

[divgradcurl]

I don't want to repeat the entire case, but you are right, that case does discuss color of title -- but color of title is not, and never has been, a requirement to perfect a title via adverse possession in California. The requirements for adverse possession in California are (and I quote caselaw here, but it's the same in the statute):

"To establish title by adverse possession, the claimant must establish five elements in connection with his occupancy of the property. ( Unger v. Mooney, 63 Cal. 586 [49 Am.Rep. 100]; see Code Civ. Proc. §§ 321 et seq.)

(1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. ( Unger v. Mooney, supra; Thompson v. Pioche, 44 Cal. 508; Wilson v. Nichols, 39 Cal.App.2d 527 [103 P.2d 1007]; Huling v. Seccombe, 88 Cal.App. 238 [263 P. 362].)

(2) Possession must be hostile to the owner's title. ( Unger v. Mooney, supra; Grimmesey v. Kirtlan, 93 Cal.App. 658 [270 P. 243]; Madden v. Hall, 21 Cal.App. 541 [132 P. 291].)

(3) The holder must claim the property as his own, either under color of title, or claim of right. ( Unger v. Mooney, supra; Thompson v. Pioche, supra; Lovell v. Frost, 44 Cal. 471.)

(4) Possession must be continuous and uninterrupted for five years. ( Akley v. Bassett, 189 Cal. 625 [209 P. 576]; Unger v. Mooney, supra; City of San Jose v. Trimble, 41 Cal. 536.)

(5) The possessor must pay all of the taxes levied and assessed upon the property during the period. ( Unger v. Mooney, supra; Central Pac. R. R. Co. v. Shackelford, 63 Cal. 261.) Unless each one of these elements is established by the evidence, the plaintiff has not acquired title by adverse possession."

West v. Evans (1949) 29 Cal. 2d 414, 417. This case cites Pease v. Gibson.

"Claim of right" here is simply the court's language for the standard feature of all AP statutes that require the adverse possessor to act as the "owner" of the property -- in other words, the adverse possessor must oust trespassers, otherwise he loses his claim to adverse possession.

But, although CA law acknowledges "color of title," there is NO requirement for "color of title" to prove adverse possession.

I do agree with you that "claim of right" is not the same as "color of title."

 

[bbear401]

more

Buic v. Buic (1992) 5 Cal.App.4th 1600 , 7 Cal.Rptr.2d 738

[2] To establish title by adverse possession, the claimant must establish the following five requirements: 1) Possession under claim of right or color of title; 2) actual, open, and notorious occupation of the premises in such a manner as to constitute reasonable notice to the true owner; 3) possession which is adverse and hostile to the true owner; 4) possession which is uninterrupted and continuous for at least five years; and 5) payment of all taxes assessed against the property during the five-year period. (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321 [178 Cal.Rptr. 624, 636 P.2d 588]; Kraemer v. Kraemer (1959) 167 Cal.App.2d 291, 306 [334 P.2d 675].)

this is the same case and is higlights the difference between cliam of right and color of title

1b] Preliminarily, we note that Beatriz's adverse possession claim can only be based on her possession through claim of right, not by color of title. [4] A possessor holds under "color of title" when her possession is " 'founded on a written instrument, judgment, or decree, purporting to convey the land, but for some reason defective. ... Color of title is received in evidence for the purpose of showing that the title is adverse and it therefore dispenses with other proof of hostile or adverse claim.' [Citation.]" (Estate of Williams (1977) 73 Cal.App.3d 141, 147 [140 Cal.Rptr. 593], italics in original.) The critical element of adverse possession based upon color of title is the good faith belief of the possessor that she had legal title to the property. (Ibid.)

 

[divgradcurl]

property law as all law is mesy,,beware were you get your advice

I agree with that statement completely.

 

[bbear401]

great,,,now that we agree,,,when some one places a structure on someone elses property,,even if it is a co tenent,,,that is a "claim of right",,,and under this claim of right,,,the person that started this post has a very strong case for ap,,or atleast a perscriptive easement to maintian the structure there,,,i would also think depending on the age of the structure,,estoppel, and latches might also apply.

Bill

 

[divgradcurl]

great,,,now that we agree,,,when some one places a structure on someone elses property,,even if it is a co tenent,,,that is a "claim of right",,,and under this claim of right,,,the person that started this post has a very strong case for ap,,or atleast a perscriptive easement to maintian the structure there,,,i would also think depending on the age of the structure,,estoppel, and latches might also apply.

Bill

But you are missing the important thing in CA adverse possession -- payment of the property taxes. Unless the OP can prove that the previous owner had paid property taxes on that part of the neighbor's property on which he was enchroaching, he won't be able to prove AP.

Adverse possession is "estoppel and laches" when it comes to real property claims.

In any event, that's why I told him to go see a real estate lawyer.

 

[bbear401]

he paid the taxes at the tax sale,,,he also said that there are assessing the parcel for improvements,,,if the other lot is not being assesed for improvements,,,,???,,,I think you all in cali need to band together and get you time up to 20 years,,,,we have that time frame in front of our general assembly now,,,II am hoping it passes,,,and,,,,if taxes are a worry,,estoppel and latches do not have such a requirment as paying taxes.

Bill

 

[bbear401]

Finley v. Yuba County Water Dist. (1979) 99 Cal.App.3d 691 , 160 Cal. Rprt. 423



As to the issue of taxes, there was no separate assessment for the parcel in dispute, but plaintiffs claim that they and their predecessors were surely taxed on the strip of land because the only physical dividing line between the properties was the fence and because there was a corral and some apple trees on their side of the fence. They cite Price v. De Reyes (1911) 161 Cal. 484, 490 [119 P. 893], in which the Supreme Court said: "[T]he natural inference would be that the assessor put the value on the land and improvements of each party as disclosed by the visible possession, rather than that he ascertained the true line by a careful survey and assessed to one a part of the possessions of the other." [99 Cal.App.3d 698]

 

[gfro]

Does anyone know if our neighbor has any right to just tear down this addition- I ask because we are currently not in the area and won't be for another month and a half. Also , we called them 2 days ago to inquire about buying his lot again and still no answer ,though we did leave messages.thanks....

 

[seniorjudge]

Does anyone know if our neighbor has any right to just tear down this addition- I ask because we are currently not in the area and won't be for another month and a half. Also , we called them 2 days ago to inquire about buying his lot again and still no answer ,though we did leave messages.thanks....

Q: Does anyone know if our neighbor has any right to just tear down this addition

A: No, you cannot tear down a building on your neighbor's lot and he cannot tear down a building on your lot.

 

[bbear401]

If you think you neighbor might damage or destroy your addition when you are not there, you might need to bring suit for an Temporary Restraining Order (TRO) and a Preliminary Injuction (PI) to preent him from any ,as the law would call it, "self help" (removing property from property his claimed property).

In my twenty years in real estate, I have never seen or heard of a court at "least that was not over ruled on appeal" require the a structure that has been in place for many years that, that is visible and obvious, that is ascertainable from a lay persons abilities without aid of a survey, and that is fixed to the earth to be moved.

if I were in a similar situation, I would

1 contacting an attorney that is fimilair with boundary litigation. Not one that only wants to pursue adverse possesion. for example Acquiescence. is a doctrine that does not include the payment of taxes, although i did paste a portion of a case from cali, that could be used for the tax argument.

“[A] Party alleging acquiescence must show that a boundary marker existed and that the parties recognized that boundary for a period equal to that prescribed in the statute of limitation to bar reentry,(adverse possession law) (Locke, 610 A. 2d at 556). While this case is from rhode island, cali does have similair if not identical decisions.

Estoppel is another doctrine that could well be applied. I would never proceed with an attorney in a case such as this without this defense.

2 Placing yourself in a possition of a defendant if trial is needed

3 If unable to wait to be a plaintiff or threat to your property is imediate, bring suit as a plaintiff for a TRO

4 Futher, read Am Jur 2d Boundaries and read Am jur 2d on Easements and liscenses, and Am Jur 2d Adjoinging Lands. These can be had at most court houses, even if yor out of the area. other good books on these issues is Tiffany on boundaries, or any books by Walter Robilard surveyor and attorney, who is the formost author on thsees issues throughout the country.

Walter, also is availible as an expert witness or for amicus.

Bill

 

[gfro]

Thanks for the info. But just curious- if he's already removed it ,is there anything we could do about it or is it just a done deal? Still haven't heard from him and we hope hope he's just on vacation and not ignoring us on purpose.We want to stay friendly but there be no way (if I were him I'd be pissed too- but I don't think it should be at us) if he won't sell us his whole lot.thanks...

 

[bbear401]

yes, you can still get an injuction as they might also attempt to place a fence and you could sue for damages for your losses, and I place a lis pendance (litigation pending) notice on anyones title whom i am in litigation with,,this effectively prevents them from selling, or disposes of the property to another person, which could lead to additional litigation, and has the added benifit of preventing any building permits or refinancing of their property.

I have found that when some one is paying to fight, and their property is locked up by way of Lis pendance,,,,they have a way of becoming resonable.

You can send me a private email of you like,,and we can discuss,,hypothetically

Bill

 

[gfro]

Could they place a fence blocking our access to the addition?This was built to be the main entrance to the house or would we have to turn our back door into the new main entrance? Can we claim an easement to keep it the main entrance? The cement walkway from the gate-both on his property too- leads right to the entrance(addition) and was obviously placed there for that purpose.thanks...

 

[divgradcurl]

Could they place a fence blocking our access to the addition?This was built to be the main entrance to the house or would we have to turn our back door into the new main entrance? Can we claim an easement to keep it the main entrance? The cement walkway from the gate-both on his property too- leads right to the entrance(addition) and was obviously placed there for that purpose.thanks...

Geez, what part of "go see a lawyer" don't you understand?