adverse possession Archives

2 Dec

Adverse possession a concern for California property owners

The relatively obscure principle of “adverse possession” may be demonstrated by the story of a Bay area man who found a suitably abandoned house and simply moved in. The concept of adverse possession is rooted in the belief that society’s best interests are met when property and land are utilized productively rather than sitting fallow.

Steve DeCaprio had become aware of a turn-of-the-century bungalow that had sat vacant for many years. He also knew that the previous owner of the house had died in the early 1980s and that no one had come forward to claim it. The house was in major disrepair.

DeCaprio and a group of friends got to work making the place habitable. He got the water flowing, bought storm doors and painted the exterior, planted vegetation in the front yard, and cut down another backyard tree that posed a hazard to the house next door.

DeCaprio didn’t buy this house but adverse possession says he owns it

DeCaprio didn’t buy this house, but, after more than a decade of struggle, he now owns it through the process of adverse possession. The obscure law called “adverse possession” allows ownership not through purchase or inheritance (the usual paths to home ownership), but through occupation. It only applies when no one else can prove they are the real owner.

In California, adverse possession requires five years of continued use

In California, adverse possession requires five years of continued use which is “open and notorious” and “adverse” to the owner’s interest. The maintenance and upkeep and improvement of the property is required and for the five years of use the property taxes must be paid for the property being adversely possessed.

Through adverse possession, it is possible to gain ownership of just a few feet of property or many acres. Adverse possession is not necessarily intentional on the part of the party that gains possession. It can happen through a legitimate mistake. For example, a neighbor may have relied upon a faulty property description in a deed when building a fence on an adjoining property.

DiJulio Law Group
https://www.dijuliolawgroup.com

23 Oct

The Mechanic’s Lien: A Contractor’s Way To Secure Payment

David DiJulio

Adverse Possesion adverse possession, contractor, foreclosure, mechanic's lien

Placement of a Lien by an Unpaid Contractor

An unpaid contractor may place a mechanics lien or “hold” against your property as a way to collect for work performed. Subcontractors, laborers, or material suppliers, may also may place liens which are then recorded with the county recorder’s office. The use of a lien is a typical means used by contractors and subcontractors alike as a way to secure payment for labor performed or materials furnished. Liens allows for foreclosure action, forcing the sale of the property when they have not been paid.

Contractors may view construction liens as a more advantageous alternate to litigation when cost and the time involved are considered. Also, the fact that the lien attaches to the interest of the owner of the property, and the priority afforded to properly filed construction liens over prior mortgages or other encumbrances may be an advantage. The question of lien priority is dependent on several factors and is best addressed by a qualified real estate attorney.

A property may be the subject of a lien when the prime contractor or “direct contractor” has not paid subcontractors, laborers, or suppliers. Legally, the homeowner is ultimately responsible for payment – even if they already have paid the direct contractor.

A lien can result in a variety of problems

If the homeowner doesn’t pay the lien foreclosure may result. A court proceeding that employs judicial foreclosure sales (similar a to mortgage foreclosure) is how mechanic’s liens are enforced. The court must determine whether the requirements of the law have been met and, if so, the priority of the mechanic’s lien being foreclosed relative to the other liens or encumbrances on the title. Once that is determined, the court will order the property sold and the proceeds of the sale applied to the liens in the order of their priority.

You may have difficulty selling your home if there is a lien against it. Buyers often won’t buy the property unless the title is clear, meaning it has no liens. A contractor with a lien has the right to have your property sold in order to pay off the lien via a foreclosure sale. More commonly, instead of forcing a foreclosure sale, a contractor will wait until the property is sold.

This is because in many cases a mortgage was placed on the property before the contractor’s lien and so the mortgage must be paid off before any other liens are paid. If the contractor forecloses on the lien, they have to keep up the payments on the mortgage or lose the property.

In some instances a homeowner may sell the property and use part of the proceeds to pay off the lien.

DiJulio Law Group

https://www.dijuliolawgroup.com

13 Aug

PRESCRIPTIVE EASEMENT – WHAT IS IT?

David DiJulio

Adverse Possesion adverse possession, easements, easment, prescriptive, prescriptive easements

An Easement is the right to use somene else’s land. A prescriptive easement is a right acquired by long term use.

The elements for adverse possession and a prescriptive easement are identical except for the fourth element- the payment of taxes. (Sulivan v. Balestrieri (1956) 142 Cal.App.2d 332 [298 P.2d 688].)

To acquire title by prescriptive easement or by adverse possession, the claimant must establish: (a) hostile acts to the true owner’s title; (b) actual, open, and notorious occupancy of the land; c) possession under a claim of right or a color of title; (d) continuous and uninterrupted possession for five years; and (e) payment of all taxes levied and assessed for the possession period. (Safwenberg v. Marquez (1975) 50 Cal.App.3d 301 [123 Cal.Rptr. 405.)

One party “Mover” moved a fence has been in place for 40 years because a recent survey indicated that a portion of land on the other side of the fence (” V”) belonged to Mover. (the “Disputed Property.)

Hostile Possession and Claim of Right.

When the V purchased their home, the fence made the Disputed Property appear to belong to the V, they were told by the real estate broker that the Disputed Property was their property. V have watered, improved and maintained the Disputed Property as their own for more than 20 years. As a result, The V treated the Disputed Property as theirs, creating the necessary hostile intent to possess it.

Actual Open and Notorious.

There is no question that The V’s possession of the Disputed Property was open and notorious because their possession by way of various improvements was clearly visible to A.

Claim of Right.

At all times, the V’s have fenced the Disputed Property and treated it as their own,

excluding A under a claim of right.

Possession for Five Years.

The use of the Disputed Property began in the 60’s and has continued to the present date by all owners of the V property, until last month when A moved the fence. Thus, the five years is easily met.

These Elements are enough for a prescriptive easement to use A’s property in the future.

For more information contact David DiJuliomailto:[email protected].

DiJulio Law Group: Los Angeles real estate attorneys with more than 35 years of experience. Call 888-519-1613 or emal [email protected].

DiJulio Law Group

(818) 502-1700

Adverse Possession and California property owners