Senate Bill No. 608

Introduced by Senator Wright

February 22, 2013

An act to add Chapter 2.5 (commencing with Section 1134.1) to Title 4 of Part 4 of Division 2 of the Civil Code, and to add Section 325.5 to the Code of Civil Procedure, relating to adverse possession.

LEGISLATIVE COUNSEL’S DIGEST

SB 608, as introduced, Wright. Adverse possession: public entity properties.

Existing law sets forth the grounds for a claim of title by adverse possession. Existing law also requires that a person claiming title in an action for adverse possession show that the land has been occupied and claimed for the period of 5 years continuously, and the party or person, their predecessors and grantors have paid all taxes, as provided.

This bill would provide that a nonpublic entity has no right under the doctrine of adverse possession to possess, occupy, or own public property or claim a public property by adverse possession. The bill would prohibit a public entity, as defined, from selling real property or conveying a durable interest in real property, except by official action and if leased, such that the public entity maintains a reversionary interest in the property conveyed. The bill would provide that any sale or conveyance made or claimed in violation of its provisions may be voided by any party to the conveyance.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

(a) The Legislature finds and declares that the
protection of the public’s fundamental right to preserve its interest
in public property is a matter of statewide concern.

(b) The Legislature finds and declares both the following:

(1) Transparency of the process by which public lands are sold
or leased to private parties by public entities is essential to the
preservation of the public’s interest in public property.

(2) The right of the public entity to reclaim possession of public
land upon the termination, cessation, or expiration of a private
party’s legal right to possess such lands, or if public land is claimed
by adverse possession is absolute.

SEC. 2.  

Chapter 2.5 (commencing with Section 1134.1) is
added to Title 4 of Part 4 of Division 2 of the Civil Code, to read:

 

Chapter  2.5. Public Entity Real Property Transfers

 

1134.1.  

For the purpose of this chapter:

(a) “Durable interest in real property” means any interest or
right of possession in real property created by a public entity upon
its conveyance, or the modification of a conveyance, to a party
that does not have an ownership interest in the real property
conveyed, and includes interests created by leases, franchises,
charters, compacts, options, and other agreements that assign
property thereto.

(b) “Public entity” includes the state, any political subdivision
thereof, a city, county, or city and county, and any other state body
or agency, or any other local public agency, or subdivision thereof.

1134.2.  

(a) (1) A public entity shall not sell real property or
convey a durable interest in real property, or modify that interest,
except by official action taken in a manner that complies with the
law, including those laws that apply to property and contracts
generally, and, if leased, such that the public entity maintains a
reversionary interest in the property conveyed.

(2) Notwithstanding the creation of an option agreement or other
contingent interest that conforms to all of the terms of this section,
no conveyance may authorize private possession of real property
which exceeds the date on which the public entity’s reversionary
interest vests.

(b) Records of sales of real property or conveyances, or
modifications thereof, of a durable interest in real property by a
public entity to any third party, including records in the possession
of a public entity that is not the lessor or holder of the public’s
reversionary interest, shall be open to public inspection pursuant
to the California Public Records Act (Chapter 3.5 (commencing
with Section 6250) of Division 7 of Title 1 of the Government
Code), except as specified by that act.

(c) A sale of real property or conveyance of a durable interest
in real property, or modifications of a conveyance thereof, shall
be of no force or effect unless it is approved by a public entity in
a manner that satisfies all of the following:

(1) The sale or conveyance complies with all appropriate statutes
or ordinances that authorize and govern the public entity’s ability
to sell or convey interests in public property to other public entities
or to nonpublic entities.

(2) The sale or conveyance is set forth, in its entirety, in a written
instrument at the time of the public entity’s approval of the sale
or creation of a third-party interest.

(3) If applicable, the sale or conveyance is approved by
resolution or other action in a manner that complies with the
Bagley-Keene Open Meeting Act (Article 9 (commencing with
Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of
the Government Code) or the Ralph M. Brown Act (Chapter 9
(commencing with Section 54950) of Part 1 of Division 2 of Title
5 of the Government Code).

(d) A conveyance, or modification thereof, of any durable
interest in real property by a public entity to a nonpublic entity
shall be effective, and possession of that real property by a
nonpublic entity allowed, if the public entity and nonpublic entity
have reached a legally binding agreement or understanding of
conveyance, or modification thereof, that complies with the
applicable requirements of contract formation or modification set
forth in Part 2 (commencing with Section 1549) of Division 3 of
the Civil Code and that specifies the duration of the possession in
writing and identifies the public entity’s reversionary interest.

1134.3.  

(a) Notwithstanding Section 1134.2, any durable
interest in real property that is conveyed by a public entity on a
month-to-month term or for an unspecified duration such that
possession does not exceed one year may be considered lawfully
conveyed pursuant to this chapter if the conveyance satisfies the
requirements of this section.

(b) A public entity may convey a durable interest in real property
pursuant to the ministerial application of a policy, regulation, or
guideline previously adopted by the conveying public entity which
contains all of the following:

(1) A description of the nature of operations, physical extent,
or metes and bounds of the interest or interests in real property or
properties subject to the policy, regulation, or guideline.

(2) The maximum duration of the possession allowed under the
policy, regulation or guideline. A conveyance pursuant to a
policies, regulation, or guideline that fails to limit duration of
possession, or that permits possession of an unlimited duration, is
not valid.

(3) The rates, schedule of rates, or the basis upon which an
establishment of rates on a case-by-case basis may be set by an
administrator and which shall be charged in conjunction with the
conveyance.

(4) Findings sufficient to show that the conveyance meets the
requirements for an express contract set forth in Part 2
(commencing with Section 1549) of Division 3 of the Civil Code.

(5) The public official or officials responsible for administering
the provisions of the policy, regulation, or guideline and the manner
in which the limitations on possession of the property conveyed
shall be enforced.

(c) A conveyance subject to subdivision (a) that is subsequently
modified shall comply with Section 1134.2.

1134.4.  

(a) A sale or conveyance made or claimed in violation
of any of the Sections 1134.2 or 1134.3 may be voided at the
instance of any party pursuant to an action authorized by Section
526a of the Code of Civil Procedure. No such sale or conveyance
may be voided because of a violation of subdivision (b) of Section
1134.2 by a public entity subsequent to sale or conveyance,
provided that all other requirements governing the sale or
conveyance under that section have been satisfied.

(b) An action under this section brought by a nonpublic entity
shall be commenced after the plaintiff has discovered, or in the
exercise of reasonable care should have discovered, a violation
described in subdivision (a), pursuant to the applicable statute of
limitations as described in Chapter 2 (commencing with Section
315) of Title 2 of Part 2 of the Code of Civil Procedure.

SEC. 3.  

Section 325.5 is added to the Code of Civil Procedure,
to read:

325.5.  

(a) For purposes of this section, “public entity” includes
the state, any political subdivision thereof, a city, county, or city
and county, and any other state body or agency, or any other local
public agency, or subdivision thereof.

(b) A nonpublic entity has no right under the doctrine of adverse
possession to possess, occupy, or own public property, nor may
public real property be alienated by the passage of time alone.

(c) A nonpublic entity shall not claim a public property by
adverse possession nor may a nonpublic entity claim that a public
entity has allowed real property be alienated indirectly through
the passage of time.

(d) An action filed by a public entity challenging nonpublic
entity’s claim to public property under the doctrine of adverse
possession is not subject to any statute of limitations.