Q: Mr. Jones; my husband and I are longtime readers and we have a question that we don’t think you’ve ever addressed in all the years we’ve been reading. My brother died almost 10 years ago and left me a small property in Northern California. It’s not much, just about five acres and way outside any city limits. But my husband and I always intended to put a trailer on it and use it as a retirement getaway. We hadn’t seen the place since shortly after John died. This week I was served with a lawsuit in which somebody I never heard of is making a claim that they own the property, not us. Inside the lawsuit it says that this other guy has paid all of the property taxes and has been in possession of the property for more than five years. That caused us to think about the taxes and we realized that we hadn’t even seen a tax bill since we could remember. Do you have any idea what’s going on?
A: Well, you’ve left me without a lot of specific information but I’ll take a swing at it.
I have written, though admittedly rarely, on a concept called “adverse possession.” Adverse possession in an ancient concept that still exists today in California law. It allows, under the right conditions, for someone to come in and take ownership of property away from someone who has, essentially, ignored the property for a long enough period of time.
The original purpose of the law was to ensure that title to real estate wasn’t lost for hundreds of years because those who owned the land either didn’t know they owned it or died without transferring it to someone rendering the land useless to anyone.
In brief, to take property by adverse possession the person wanting title has to prove that they’ve paid all of the property taxes for five years, have occupied the land for five years, and that their occupation of the land would have been obvious if the true owner had bothered to look.
I’m not justifying this concept, which seems to me to have no real application today.
Nowadays title to every parcel of land in the state is documented and recorded on the public record so there’s really no chance the original purpose of the law would be necessary. And if the true owner doesn’t pay the property taxes the county tax collector will sell the property to someone who will.
However, during the Great Recession we saw the rise of professional adverse possessors.
These people would find abandoned properties and try to set up the conditions necessary to file a lawsuit called a “quiet title” action. In it the adverse possessor tries to get a court to make the transfer of ownership official.
That sounds like what you were served with.
Now the part of your email that caught my attention, and the main reason I ran your question this week, is the part where you said you hadn’t received a tax bill in a very long time.
One of the tricks these professionals have used is to record something we call a “wild deed.”
A wild deed is typically a quitclaim deed executed from a person working with the adverse possessor, who has no interest to the property, and who deeds it to the adverse possessor.
And it’s perfectly legal!
Anybody can record a quitclaim deed even if they don’t believe they have an ownership interest.
But in this case, the purpose of the wild deed is to get the county assessor to send the tax bills to the guy who eventually wants to sue for quiet title.
After that, all the guy has to do is pay the bill for five years.
The good news is that a recent court decision may have established that the recordation of a wild deed may prevent the adverse possessor from prevailing in court.
Frankly, all the legal technicalities are beyond the scope of this column, but it goes something like this.
A quiet title action is a type of lawsuit known as an “equitable” action. That’s different than a “legal” action. For example, you aren’t entitled to a jury in an equitable action.
It also allows the defendant, that’s you, to raise certain defenses you wouldn’t have in any other type of lawsuit.
One of those is known romantically enough as “unclean hands.” Unclean hands is an apt title. The defendant can claim that the adverse possession did something that was wrong or unfair and therefore the court shouldn’t help him out.
In this case, he recorded a wild deed for the express purpose of deceiving you, the record owner of the property.
The court case in question, Aguyao v. Amaro, found that the adverse possessor acted deceptively and the court refused to grant him title.
Regardless, you now find yourself in a Superior Court lawsuit. If you do nothing, you lose.
You’re going to have to file an answer with whatever court the suit was filed in within 30 days of being served. But it sounds like you may have a great defense.
Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like to have answered in this column you can contact him at SolanoScene@TJones-Law.com.