Adverse Possession by Tenants-In-Common

A recent real estate litigation lawsuit before the California Court of Appeals case addressed an attempt by a co-tenant in undeveloped land to claim adverse possession against the other co-tenants. In Hacienda Ranch Homes, Inc. v. Superior Court of San Joaquin County (Elissagaray), the Court of Appeals reiterated the elements of adverse possession, especially when asserted against a co-tenant, and ordered the trial court to reverse its prior ruling and to grant summary judgment in favor of the other co-tenant. The Court of Appeals found that the cotenant could not establish ouster of the other tenants-in-common and therefore their claim must fail.

The Elements of Adverse Possession

Real Estate Attorneys seeking to establish adverse possession must show (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, and (5) the holder must pay all the taxes levied and assessed upon the property during the period.

Most adverse possession lawsuits in California are nonstarters because the person seeking to establish adverse possession has not paid all the taxes levied and assessed upon the property during the five year period.

Adverse Possession by Co-Tenants

When the party seeking to claim adverse possession of property is a co-tenant, there are additional requirements for proving the adverse possession. This is because each tenant in common has a right to occupy the whole of the property. The possession of one is deemed the possession of all and each co-tenant may assume that another co-tenant in exclusive possession is possessing for all rather than adversely to all. Therefore, before title may be acquired by adverse possession as between cotenants, the occupying tenant must bring home or impart notice to the tenant out of possession, by acts of ownership of the most open, notorious and unequivocal character, that he intends to oust the latter of his interest in the common property. This evidence must be stronger than the evidence required to establish a title by adverse possession in a stranger. The Court held that, in short, one tenant in common cannot by mere exclusive possession acquire the title of his cotenant.

Ouster of a Tenant-In-Common

An ouster, in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession. Ouster must be proved by acts of an adverse character, such as claiming the whole for himself, denying the title of his companion, or refusing to permit him to enter. Examples of ouster include denial of title, changing the locks, posting “No Trespassing” signs on the property and denying admittance to the other tenants-in-common.

In the Hacienda Ranch Homes, Inc. case the court found that it was undisputed that the property was unimproved and the cotenant seeking to establish adverse possession never told the cotenants to stay off the property, never put up a fence or barrier prohibiting entry on the property, and never excluded the cotenants from the property. The claimant argued that they “disced” (weeded) the property two or three times a year, posted a “for sale” sign near the property and introduced themselves at a meeting as the owner of the property. The Court of Appeals noted that weeding could be construed as routine maintenance for the benefit of all the cotenants. Moreover, the “for sale” sign (which was not on the property) and the meeting comments did not clearly notify the cotenants of an unequivocal and hostile claim to their ownership interests in the property.

The Elissagarays (who were seeking to claim adverse possession) argued that the cotenants did not attempt to enter or use the property. However, the Court of Appeals noted that the law does not impose this requirement on cotenants of unimproved property in order for them to preserve their property interest in the absence of open, notorious and unequivocal notice of ouster.

The Court of Appeals therefore directed the trial court to vacate its order denying Hacienda’s motion for summary judgment and to enter an order granting the motion and judgment in favor of Hacienda. In other words the Elissagaray’s lost their claim of adverse possession against the other tenants-in-common.

Laine T. Wagenseller is a Los Angeles attorney who specializes in real estate litigation. Mr. Wagenseller is the founder of Wagenseller Law Firm and handles adverse possession, partition and other lawsuits between co-owners of real property. For more information on the firm and more articles, please visit Mr. Wagenseller can be contacted at (213) 286-0371 or

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