CACI 4900 Adverse Possession

California Civil Jury Instructions CACI

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.

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.

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 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)