BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1684
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          Date of Hearing:   March 16, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                   AB 1684 (Jeffries) - As Amended: March 11, 2010

                                  PROPOSED CONSENT 
           
          SUBJECT  :   Adverse Possession: Payment of Taxes

           KEY ISSUE  :  Should a person claiming title to land as an adverse  
          possessor be required to prove, by certified records of the  
          county tax collector, that he or she has paid all taxes levied  
          upon the property continuously throughout the required five year  
          period?  

           FISCAL EFFECT  :   As currently in print this bill is keyed  
          non-fiscal. 

                                      SYNOPSIS
                                           
          This bill seeks to address the problem of persons who attempt to  
          acquire land by adverse possession by paying taxes on the land  
          even though they do not own or occupy that land.  "Adverse  
          possession" permits a person to acquire title to land if the  
          person has "openly, continuously, and notoriously" occupied such  
          land for a prescribed statutory period and the rightful owner  
          has not exercised his or her right to remove the adverse  
          possessor during that period.  California, like many other  
          states, requires additionally that the adverse possessor must  
          have paid all taxes levied upon the land during the five year  
          period that the adverse possessor openly and continuously  
          occupied the land.  In recent years, a number of county tax  
          collectors have noted that modern-day land "speculators" are  
          attempting to make payments on mostly rural parcels of land in  
          hopes of building a claim for title to the land, even though the  
          speculator is not using or occupying the land in question.  This  
          bill, which is sponsored by the California Association of County  
          Treasurers and Tax Collectors (CACTTC), addresses the situation  
          in which a speculator attempts to make a lump-sum tax payment on  
          a parcel with an outstanding tax obligation and then claims to  
          have continuously and openly occupied the land for the entire  
          five-year period.  This bill would clarify that the adverse  
          possessor must make timely payments throughout the statutory  
          period and that this must be established by certified records of  








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          the county tax collector.  There is no known opposition to this  
          bill.  

           SUMMARY  :  Provides that annual payment of taxes, which is  
          already a required element of adverse possession in California,  
          must be established by certified records of the county tax  
          collector and show that the taxes were paid continuously  
          throughout the five year statutory period.  Specifically,  this  
          bill  :  

          1)Provides that for purposes of constituting an adverse  
            possession, in addition to meeting other prescribed elements,  
            the person claiming title as an adverse possessor, or the  
            person's predecessors and grantors, shall have timely paid all  
            state, county, or municipal taxes that have been levied and  
            assessed upon the land for such period of five years during  
            which the land has been occupied and claimed.

          2)Specifies that payment of taxes, in the manner described  
            above, must be established by certified records of the county  
            tax collector. 

           EXISTING LAW  : 

          1)Provides generally, in case law, that to establish a claim to  
            property by adverse possession, the claimant must prove all of  
            the following: (1) possession under claim of right or color of  
            title; (2) actual, open, and notorious occupation of premises  
            sufficient to give reasonable notice to the true owner; (3)  
            possession which is adverse to the true owner; (4) continuous  
            possession for at least five years; and (5) payment of all  
            taxes assessed and levied against the property during the  
            five-year period.  (Mehdizadeh v. Mincer (1996) 46 Cal. App.  
            4th 1296.) 

          2)Provides that, for purposes of constituting 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 where it has been (1) protected by  
            substantial enclosure and (2) usually cultivated or improved.   
            Provided, however, that in no case shall adverse possession be  
            considered established unless it is shown that the land has  
            been occupied and claimed for the period of five years  
            continuously, and the party or persons, their predecessors or  
            grantors, have paid all taxes, State, county, or municipal,  








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            which have been levied and assessed upon such land.  (Code of  
            Civil Procedure Section 325.)

          3)Provides a process by which a property owner of record may  
            instruct a tax collector, by written request, to refund a  
            replicated, or second, payment on a current property tax  
            assessment to the tendering party who is not the owner of  
            record.  (Revenue & Taxation Code Section 2781.5.) 

           COMMENTS  :  This bill, like last year's AB 143 by the same  
          author, seeks to address the problem of persons attempting to  
          acquire land by adverse possession by paying taxes on land that  
          they do not own and that they have not occupied.  Specifically,  
          this bill addresses a problem in which would-be adverse  
          possessors scan tax records for parcels of land with outstanding  
          tax obligations, make a lump-sum payment of taxes for the  
          previous five years, and then claim that they have occupied the  
          land for that five-year period.  Last year's bill addressed the  
          problem of persons attempting to make payments prior to any  
          payment made by the owner of record, so that the claimant's  
          payment would take precedence over the payment of the true  
          owner.  This bill addresses the problem of persons who attempt  
          to make post hoc payments on land with outstanding tax  
          obligations.  

           Background  :  The centuries-old common law doctrine of "adverse  
          possession" permits a person to acquire title to land if the  
          person has "openly, continuously, and notoriously" occupied land  
          for a prescribed statutory period and the rightful owner, who is  
          presumed to have notice of this occupation, has not exercised  
          his or her right to remove the adverse possessor during the  
          statutory period.  Historically, this doctrine prevented land  
          owners from letting land sit idle while others were willing to  
          productively use and improve the land.  Traditionally statutory  
          periods ran from 15 to 20 years, but California has adopted a  
          relatively short statutory period of five years.  California  
          also imposes an additional statutory requirement that, in order  
          to prevail on the claim, the adverse possessor must have paid  
          all taxes assessed and levied upon the land during the five year  
          period.  

          In recent years, some county tax collectors have pointed out  
          that modern-day land "speculators" are attempting to make  
          payments on rural parcels of land in hopes of building a claim  
          for title to the land, even though they are not using or  








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          occupying the land in question.  (See e.g. "Obscure Law That  
          Benefits Squatters Criticized," Riverside County  
          Press-Enterprise, June 22, 2007.)  Last year's measure created a  
          mechanism by which a tax collector could return a redundant  
          payment to the payer who was not the owner of record.   
          (Previously the tax collector was required to return the payment  
          to the party that made the later payment, so that the adverse  
          possessor would be credited with paying the tax if his payment  
          arrived before the true owner's payment.)  This bill, on the  
          other hand, addresses a situation in which a speculator attempts  
          to make a lump sum payment on a parcel with taxes due and then  
          attempts to claim that he or she has continuously and openly  
          occupied the land for the entire period.  This bill would  
          clarify that the adverse possessor must establish, by certified  
          records of the county tax collector, that he or she made those  
          tax payments continuously throughout the required five year  
          period.  There is no known opposition to this bill.  Last year's  
          measure, which was signed by the Governor and chaptered,  
          received unanimous votes in all committee and floor votes in  
          both the Assembly and the Senate. 

           Prior Legislation  .  AB 143 (Ch. 95, Stats of 2009) created a  
          mechanism for a county tax collector to refund a replicated  
          property tax payment to a person who is not the property owner  
          but who has paid the property tax on the current assessment of  
          that property.  

          AB 1959 (Jeffries) 2007-08 legislative session was nearly  
          identical to AB 143, above. AB 1959 passed out of the Assembly,  
          was amended in the Senate, was returned for concurrence in the  
          Assembly, but was never taken up for concurrence before the  
          session ended.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Association of County Treasurers and Tax Collectors  
          (sponsor) 

           Opposition 
           
          None on file 
           









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          Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334