CACI No. 4900. Adverse Possession

Judicial Council of California Civil Jury Instructions (2020 edition)

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4900.Adverse Possession
[Name of plaintiff] claims that [he/she/nonbinary pronoun] is the owner of
[briefly describe property] because [he/she/nonbinary pronoun] has obtained
title to the property by adverse possession. In order to establish adverse
possession, [name of plaintiff] must prove that for a period of five years,
all of the following were true:
1. That [name of plaintiff] exclusively possessed the property;
2. That [name of plaintiff]’s possession was continuous and
uninterrupted;
3. That [name of plaintiff]’s possession of the property was open and
easily observable, or was under circumstances that would give
reasonable notice to [name of defendant];
4. That [name of plaintiff] did not recognize, expressly or by
implication, that [name of defendant] had any ownership rights in
the land;
5. That [name of plaintiff] claimed the property as [his/her/nonbinary
pronoun] own under [either] [color of title/ [or] a claim of right];
and
6. That [name of plaintiff] timely paid all of the taxes assessed on the
property during the five-year period.
New November 2019
Directions for Use
Use this instruction for a claim that the plaintiff has obtained title of property by
adverse possession. A claimant for a prescriptive easement is entitled to a jury trial.
(Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 124 [21 Cal.Rptr.2d 127]; see
CACI No. 4901, Prescriptive Easement.) Presumably the same right would apply to
a claim for adverse possession. (See Kendrick v. Klein (1944) 65 Cal.App.2d 491,
496 [150 P.2d 955] [whether occupancy amounted to adverse possession is question
of fact].)
By statute, the taxes must have been paid by “the party or persons, their
predecessors and grantors.” (Code Civ. Proc., § 325(b).) Revise element 6 if the
taxes were paid by someone other than the plaintiff.
Sources and Authority
• Adverse Possession. Code of Civil Procedure section 325.
• Color of Title: Occupancy Under Written Instrument or Judgment. Code of Civil
Procedure section 322.
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• Occupancy Under Claim of Right. Code of Civil Procedure section 324.
• “There is a difference between a prescriptive use of land culminating in an
easement (i.e., an incorporeal interest) and adverse possession which creates a
change in title or ownership (i.e., a corporeal interest); the former deals with the
use of land, the other with possession; although the elements of each are similar,
the requirements of proof are materially different.” (Hansen v. Sandridge
Partners, L.P. (2018) 22 Cal.App.5th 1020, 1032 [232 Cal.Rptr.3d 247], original
italics.)
• “In an action to quiet title based on adverse possession the burden is upon the
claimant to prove every necessary element: (1) Possession must be by actual
occupation under such circumstances as to constitute reasonable notice to the
owner. (2) It must be hostile to the owner’s title. (3) The holder must claim the
property as his own, under either color of title or claim of right. (4) Possession
must be continuous and uninterrupted for five years. (5) The holder must pay all
the taxes levied and assessed upon the property during the period.” (Dimmick v.
Dimmick (1962) 58 Cal.2d 417, 421 [24 Cal.Rptr. 856, 374 P.2d 824].)
• “To establish adverse possession, the claimant must prove: (1) possession under
claim of right or color of title; (2) actual, open, and notorious occupation of the
premises constituting reasonable notice to the true owner; (3) possession which
is adverse and hostile to the true owner; (4) continuous possession for at least
five years; and (5) payment of all taxes assessed against the property during the
five-year period.” (Hansen, supra, 22 Cal.App.5th at pp. 1032-1033.)
• “ ‘The elements necessary to establish title by adverse possession are tax
payment and open and notorious use or possession that is continuous and
uninterrupted, hostile to the true owner and under a claim of title,’ for five years.
[Citation.]” (McLear-Gary v. Scott (2018) 25 Cal.App.5th 145, 152 [235
Cal.Rptr.3d 443].)
• “Claim of right does not require a belief or claim that the use is legally justified.
It simply means that the property was used without permission of the owner of
the land. As the American Law of Property states in the context of adverse
possession: ‘In most of the cases asserting [the requirement of a claim of right],
it means no more than that possession must be hostile, which in turn means only
that the owner has not expressly consented to it by lease or license or has not
been led into acquiescing in it by the denial of adverse claim on the part of the
possessor.’ One text proposes that because the phrase ‘ “claim of right ” ’ has
caused so much trouble by suggesting the need for an intent or state of mind, it
would be better if the phrase and the notions it has spawned were forgotten.”
(Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450 [17 Cal.Rptr.3d 135],
internal citations omitted.)
• “Because of the taxes element, it is more difficult to establish adverse possession
than a prescriptive easement. The reason for the difference in relative difficulty is
that a successful adverse possession claimant obtains ownership of the land (i.e.,
an estate), while a successful prescriptive easement claimant merely obtains the
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right to use the land in a particular way (i.e., an easement).” (Hansen, supra, 22
Cal.App.5th at p. 1033, original italics.)
• “ ‘The requirement of “hostility” . . . means, not that the parties must have a
dispute as to the title during the period of possession, but that the claimant’s
possession must be adverse to the record owner, “unaccompanied by any
recognition, express or inferable from the circumstances of the right in the
latter.” . . . “Title by adverse possession may be acquired through [sic] the
possession or use commenced under mistake.” ’ ” (Kunza v. Gaskell (1979) 91
Cal.App.3d 201, 210-211 [154 Cal.Rptr. 101].)
• “Adverse possession under [Code of Civil Procedure] section 322 is based on
what is commonly referred to as color of title. In order to establish a title under
this section it is necessary to show that the claimant or ‘those under whom he
claims, entered into possession 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 . . . for five years . . . .’ ” (Sorensen v. Costa (1948) 32 Cal.2d
453, 458 [196 P.2d 900].)
• “The requirements of possession are more stringent where the possessor acts
under mere claim of right than when he occupies under color of title. In the
former case, the land is deemed to have been possessed and occupied only
where it has (a) been protected by a substantial inclosure, or (b) usually
cultivated or improved.” (Brown v. Berman (1962) 203 Cal.App.2d 327, 329 [21
Cal.Rptr. 401], internal citations omitted; see Code Civ. Proc., § 325.)
• “It is settled too that the burden of proving all of the essential elements of
adverse possession rests upon the person relying thereon and it cannot be made
out by inference but only by clear and positive proof.” (Mosk v. Summerland
Spiritualist Asso. (1964) 225 Cal.App.2d 376, 382 [37 Cal.Rptr. 366].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 223 et seq.
10 California Real Estate Law and Practice, Ch. 360, Adverse Possession, § 360.20
(Matthew Bender)
2 California Forms of Pleading and Practice, Ch. 13, Adverse Possession, § 13.12
(Matthew Bender)
1 California Points and Authorities, Ch. 13, Adverse Possession, §§ 13.10, 13.20
(Matthew Bender)
6 Miller & Starr California Real Estate 4th (2015) § 18:1 et seq. (Ch. 18, Real
Property) (Thomson Reuters)
Smith-Chavez, et al., California Civil Practice, Real Property Litigation § 13:1 et
seq. (Thomson Reuters)
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