What Are the Requirements for Adverse Possession in California?

Full question:

In the process of adding onto my property that I have lived in for over 14 years, it was revealed that part of my existing property (bathroom roughly 6 square feet)was encroaching onto my neighbors property. The city I live in will not allow me to continue with my project until this is taken care of. After going down to the records department I discovered that the previous owner of my property had requested permission (1983) to remodel the bathroom in question. He addressed the issue with the encroachment stating that the bathroom was there prior to him purchasing the property. He was requesting permission for a set-back of 3' from his property (bathroom) rather than the 8 feet required. The city allowed him to remodel the existing bathroom but would not allow him to build onto the property until the 'land lock' was corrected. The area that I intend on adding on to is no where near the area in question and it would not affected. The area of the encroachment is at a distance of about 20 away from their home on a slope approximately 15-20 feet high. They have never laid foot on that part of their property and there is no way that they can build or make use of it. About four years ago, I told my neighbor that I intended on replacing the fence that separated (and where 6' of the encroachment is) our property because it was termite infested and because it was falling onto their side. I told them that I would be replacing it at my cost. I also informed them that the fence would show the less desirable side of the fence on their side. I gave them the option of a 'neighbor friendly fence' that would look nice on both sides if they were willing to split the cost of the materials, I would be providing the labor. The neighbor agreed and upon completion of the job I was never reimbursed for their half of the money. Being a good neighbor, I never brought the cost of the fence up. With regard to the encroachment my title insurance company contacted my neighbor asking for permission to grant us an easement. They also agreed to reimburse them for the easement for whatever the going square foot would be. As of now the neighbor is not willing to work with us. She went so far as telling me that she was considering asking me to remove my main sewage line that runs under her property to which we are both connected to. Prior to 1914, her property and mine were one property. Sometime after 1940 the property was divided and sold. The new owner built my neighbors existing home on the property. Considering the date that the neighbors home was built (1940) compared to mine that was there since 1913, I believe that her home's main sewer line connected to my homes existing main sewer. Upon further research and reading my tittle from the tittle insurance, I found that there is an easement for the sewer line. Can she revoke the easement and would adverse possession apply here as a last resort being that I have maintained her side of the property? It is also my understanding that in order for adverse possession to take place I would have to prove that I have been paying property tax on her part of the property. How do I prove that and/or does that apply to me.I need to complete the remodel because my son suffered a diving accident that rendered him paralyzed. I need to retrofit my home and cannot until this is resolved.

• Category: Real Property
• Subcategory: Easements
• Date: 04/07/2025
• State: California

Answer:

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. Property that is occupied with the consent of the owners is not considered a hostile claim. Merely sending the possessor a note granting permission to be there will usually be enough to defeat a claim of adverse possession..

The following is a California statute:

325.

For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only: First--Where it has been protected by a substantial inclosure. Second--Where it has been usually cultivated or improved. Provided, however, that in no case shall adverse possession be considered established under the provision of any section or sections of this Code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, State, county, or municipal, which have been levied and assessed upon such land.

There are basically two types of easements- easements in gross and appurtenant easements. Easements in gross are personal rights given to individuals or specific groups. Once the easement owner dies or, in the case of corporations, dissolves, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.

When the title is transferred, the easement appurtenant typically remains with the property. This type of easement runs with the land; which means that if the property is bought or sold, it is bought or sold with the easement in place. The easement essentially becomes part of the legal description.

To terminate an easement, a condition for the purpose of the easement must have changed, such as:

• Easement's purpose no longer exists

• Ownership of the easement and of the land where the easement is located merges into one owner

• Land owner releases the easement

• Easement is abandoned

• Nonuse (of a prescriptive easement)

• Adverse possession by the owner of the land where the easement is located

• Court judgment in a quiet title action

• Misuse of the easement

Misuse of an easement does not usually terminate the easement but may give rise to claims for legal or equitable remedies. Legal proceedings may be necessary to interpret and determine the scope of easements.

The answer will depend on the facts and wording and nature of the current easement. It is possible the easement may need to be amended, or that the new use would terminate the easement and require a new easement to be created. I suggest contacting a local attorney who can review all of the facts and documents involved.