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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 37952
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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Part 2 of my question "Adverse Possession" when it says

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Part 2 of my question "Adverse Possession" when it says exclusive use or "consists of actual occupation of the land with the intent to keep it solely for oneself" Doesn't this mean the owner who wants my property has to occupy it herself? Because this particular owner uses it as a rental? I am seeking an attorney because after 8 years I have been informed by the County tax collector that I still own one half of the property her rental (use to be owned by me and I lost it in 2008 through deed in lieu of foreclosure) unbeknownst to me I only lost 1 parcel of the 2 parcels and when I owned both I built on both and her new deed only states the Eastside 2500sqft and my property is the Westside 2500sqft. I am attempting to buy back the house but I wanted leverage as to her collection of rent over the last 8 years
Submitted: 7 months ago.
Category: Real Estate Law
Expert:  socrateaser replied 7 months ago.
Hello, Would you be so kind as to rate my answer to your first question, before we start discussing your new question here. It's very difficult to deal with two Q&A sessions on the same issue simultaneously. Things tend to get lost, bouncing back and forth. Thanks in advance for your understanding and cooperation.
Customer: replied 7 months ago.
heres your ratingCustomer You perfectly answered my question and then some so how do I rate you?
Expert:  socrateaser replied 7 months ago.
Looks like you just did. I see five stars on the other answer, so thanks, ***** ***** give me a few minutes to work on this question -- it's a little more complicated than Part 1.
Expert:  socrateaser replied 7 months ago.
Interesting and unique circumstances. First, a generic definition of adverse possession is insufficient for the purposes of any seriously contemplated legal action -- because the law differs in every U.S. jurisdiction. In California, (1) 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. (West v. Evans (1946) 29 Cal.2d 414, 417 [175 P.2d 219]; Mesnick v. Caton (1986) 183 Cal. App.3d 1248, 1258 [228 Cal. Rptr. 779]; Code Civ. Proc., § 325.) The above represents what your neighbor must prove to avoid liability for the encroachment. Typically, the tax payments are the difficult part of the proof, because if the tax assessor hasn't considered the encroachment area in the assessment of the property tax amount, then payment of property taxes on the non-encroaching portion of a structure does not pay the taxes on the encroaching area. This can raise some issues where witness testimony and records from the assessor's office may be required to prove/disprove the tax payments. In your circumstance, the neighbor has held the property for eight years, which means that the five-year requirement is satisfied. But, the tax issue probably is not, though I wouldn't take the County's word for what they've told you. The appraisers who work for the county are not lawyers, and they frequently make broad statements about tax and real property law which are, for lack of a better phrase, "rubbish." Anyway, I don't know where you're located, but if you're looking for a lawyer to write a demand letter and attempt to negotiate in your behalf, I can send you a premium services invitation, and we can discuss the issue offline. I'll send the invite, and you can either accept or ignore, at your convenience. Otherwise, I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, the website retains your entire payment, and I receive nothing for my efforts in your behalf.Thanks again for using Justanswer!
Expert:  socrateaser replied 7 months ago.
Hello again,I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer -- otherwise the website retains your entire payment, and I receive nothing for my efforts in your behalf.Thanks again for using Justanswer!
Customer: replied 7 months ago.
you never explained "exclusive use"?
Expert:  socrateaser replied 7 months ago.
The case of Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093 provides a bright-line rule for a "garden variety" encroachment: "an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land [citation], will not be granted in a case (like this) involving a garden-variety residential boundary encroachment." [footnote and internal quotes omitted] Based upon the above-quoted rule, and considering your alleged facts, a structure that encroaches cannot be the subject of a prescriptive easement, because it is "exclusive" of the true owner's rights in his or her land. Which means that the encroaching owner must prove adverse possession plus "exclusive use," and failing that proof, must pay for the use of the land encroached. I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, the website retains your entire payment, and I receive nothing for my efforts in your behalf.Thanks again for using Justanswer!