Hemet, CA asked in Real Estate Law for California

Q: can I claim adverse possession to my deceased mothers house?

My sister is on the title and I have paid the payments for the last 7 years. Now there is a problem with the loan servicer and they are trying to foreclose on the house.

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1 Lawyer Answer
Mr. Robin Mashal
Mr. Robin Mashal
Answered
  • Los Angeles, CA
  • Licensed in California

A: Disclaimer: The materials provided below are informational and should not be relied upon as legal advice.

It is fairly difficult to establish adverse possession under California law. In the case of California Maryland Funding Inc. v. Lowe, 37 Cal.App.4th 1798, 1803 (1995), the court summarized the law saying:

"The elements necessary to establish title by adverse possession are: (1) tax payments, (2) actual possession which is (3) open and notorious, (4) continuous and uninterrupted for five years, (5) hostile and adverse to the true owner's title, and (6) under either color of title or claim of right. The party asserting title by adverse possession has the burden of proving affirmatively each one of these elements."

Payment of taxes is only one of the elements. You likely will have difficulty establishing the other elements. For example, If the property belonged to your late mother or your sister (i.e., the true owners) and they allowed you to live there, that would defeat the "hostile and adverse" element. You should retain your own attorney to protect your legal rights.

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