BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1684 (Jeffries)
As Amended March 11, 2010
Hearing Date: June 15, 2010
Fiscal: No
Urgency: No
BCP:jd
SUBJECT
Civil Actions: Adverse Possession
DESCRIPTION
Existing law requires an individual claiming title in an action
for adverse possession to establish that they have continuously
occupied the land for five years and paid all taxes that have
been levied and assessed. This bill would require the timely
payment of those taxes and provide that payment shall be
established by certified records of the county tax collector.
BACKGROUND
Adverse possession, a centuries-old legal concept, is the
acquisition of title to another person's real property as a
result of holding that property in a manner that conflicts with
the true owner's rights. From a policy standpoint, that
acquisition of title serves to cure potential or actual defects
in title by effectively placing a statute of limitations on
disputes regarding ownership or possession. The doctrine itself
is based upon laches - a legal concept that a party can be
prejudiced by failing to timely assert a right or claim.
In order to assert a claim of adverse possession in California,
the claimant (party seeking to gain title to the property) must
demonstrate: (1) possession under a claim of right or color of
title; (2) actual, open, notorious occupation; (3) adverse and
hostile possession; (4) continuous possession for a period of
five years; and (5) payment of all taxes assessed against the
property during the five-year period. (Mehdizadeh v. Mincer
(1996) 46 Cal.App.4th 1296, 1305.) Concerns have arisen in
(more)
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recent years about the practice of speculators making tax
payments on rural parcels of land in hopes of building a claim
for title to the land. Those speculators reportedly attempt to
make a lump-sum tax payment on a parcel with an outstanding tax
obligation and then claim to have met the other criteria for
adverse possession.
In response to concerns about that practice, this bill would
require taxes to be paid timely over the previous five years and
clarify that payment is to be established by the certified
records of the county tax collector.
CHANGES TO EXISTING LAW
Existing case law provides that to establish a claim of adverse
possession, the claimant must prove: (1) possession under a
claim of right or color of title; (2) actual, open, and
notorious occupation that provided reasonable notice to the true
owner; (3) possession that is adverse and hostile to the true
owner; (4) continuous possession for at least five years; and
(5) payment of all taxes assessed during the five-year period.
(Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305.)
Existing law states that, for purposes of adverse possession,
land is deemed to have been possessed and occupied only: (1)
where it has been protected by a substantial enclosure; and (2)
where it has been usually cultivated or improved. However,
adverse possession is not considered established unless it is
shown that the land has been continuously occupied and claimed
for a period of five years, and the party or persons have paid
all state, county, or municipal taxes which have been levied on
the land. (Code Civ. Proc. Sec. 325.)
This bill would require the timely payment of those taxes that
have been levied and assessed upon the land for the five-year
period during which the land was occupied and claimed.
This bill would provide that payment of those taxes shall be
established by the certified records of the county tax
collector.
COMMENT
1. Stated need for the bill
According to the author:
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AB 1684 is a simple, minor change in current law. It seeks
to reinforce rightful land owners' claim to their own lands
by requiring an adverse possessor's tax payments on another
owner's land to be established by certified records of the
county tax collector. This action will enable rightful
landowners to be made further aware [of] an adverse
possession action against their land.
2. Limiting the use of adverse possession
Section 325 of the Code of Civil Procedure deems land to have
been possessed for purposes of adverse possession when it has
been protected by a substantial enclosure and cultivated or
improved. That section also states that adverse possession
cannot be established without a showing that the land has been
continuously occupied for five years and all taxes have been
paid. By requiring those taxes to be paid "timely," this bill
would prevent a party that otherwise meets the criteria for
adverse possession from making a one-time payment to satisfy the
existing tax requirement.
Although the requirement to "timely" pay taxes may prevent the
establishment of adverse possession for certain individuals, it
appears consistent with the policy reasons for adverse
possession initially. As noted above, adverse possession acts
to clear title after a period of time based upon the principle
of laches. The doctrine is not intended to be a tool for one to
abuse (as emphasized by the need for possession to be "open and
notorious" and hostile to the true owner), it is one that allows
an individual who truly believes they own the property to
perfect title. Consistent with those requirements, California
law already requires the payment of taxes - the clarification
that payment of taxes must be timely would address issues raised
by the sponsor regarding fraud and be consistent with existing
policy that applies adverse possession in situations where the
individual is truly acting like the owner of the property.
While there could be a subset of "legitimate" adverse possessors
who are unable to establish title because of one or two late
(not timely) tax payments, those individuals would just have to
wait until they have made timely payments for a period of five
years (provided that all the other requirements were met). As a
result, the present structure of the bill encourages the timely
payment of taxes for anyone who may consider filing a claim for
adverse possession.
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3. Establishing payment by certified records
This bill would also provide that the payment of taxes shall be
established by certified records of the county tax collector.
That clarification removes any potential ambiguity about how an
individual would prove the "timely" payment of taxes, and would
address a situation where the individual has lost their own tax
records over that five-year period.
4. AB 143 (Jeffries, Chapter 95, Statutes of 2009)
Last year, the Governor signed AB 143 (Jeffries, Chapter 95,
Statutes of 2009), which addressed the situation where a county
tax collector receives two payments - one from the rightful
owner and one from the adverse possessor. To resolve confusion
about how to process those two payments, AB 143 authorized a
county tax collector to return the hostile property tax payment
upon the request of the owner of record.
Support : None Known
Opposition : None Known
HISTORY
Source : California Association of County Treasurers and Tax
Collectors
Related Pending Legislation : None Known
Prior Legislation : AB 143 (Jeffries, Chapter 95, Statutes of
2009) (See Comment 4.)
Prior Vote :
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 73, Noes 0)
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