With adverse possession, it’s all about this thing called “hostility.” In general, a person has to hold the property in a way that is hostile to the true owners title for a period of five years.1This is a simplification, but it draws attention to the issue of this article. A person who rents a home, for example, has permission to be there by the terms of the contract. This “permissive possession” does not count toward taking ownership. Before the five-year clock starts to run, the possessor of the property must establish “hostility.”
“Hostility” starts the statutory clock.2See Unger v. Mooney (1883) 63 Cal. 586, 590; Thompson v. Felton (Cal. 1880) 54 Cal. 547. Through a clear and unambigious communication of intent, an person with permissive possession can forcibly convert the permissive possession into a hostile possession. But, does the opposite hold true?
Can a land owner forcibly convert a hostile possession into a permissive possession (or back into a permissive possession)?
I met a person once who thought it would be as simple as sending the adverse possessor a letter stating “I now give you permission to remain on the property,” but we shall see that it is not this simple.
With respect to converting from permissive possession to hostile possession: “one cannot acquire title by adverse possession unless he gives clear and actual notice to the owner of the adverse nature of his [or her] subsequent possession.”3Johnson v. Ocean Shore Railroad Co. (Cal. App. 1st Dist. Mar. 31, 1971) 16 Cal.App.3d 429, 436. While a licensee, tenant, or cotenant can convert permissive use into a hostile possession, it may not be so easy for an owner to convert a hostile possession into permissive possession by merely giving the occupant permission to be there.
In 1895, the California courts reviewed a dispute over the adverse possession of a water way (a ditch, dug on the land to divert water from a stream).4Jensen v. Hunter(Cal. Supr. Court, 1895) 41 P. 144 In that case, the adverse possessor’s attempt to purchase rights from the owner nullified her claim that she had a right to the land independent of the owner’s permission.
If one were to view the case differently, one might see a situation where a plaintiff destroyed a hostile claim by pointing out a moment where the adverse possessor acknowledged the plaintiff’s claim, but this reading would be wrong.
First, the plaintiff is not the landowner in the case. Mr. Jensen died in 1886, and the plaintiff complained of the diversion of water away from his land, and thus was not a successor of interest to Mr. Jensen. (Note: the stream still ran to Mr. Jensen’s land, but it did not run farther, because the defendant redirected the stream.)
Second, the court found that the adverse possessor’s testimony showed that possession was permissive during the entirety of the time that Mr. Jensen lived. Adverse possession was not defeated by a license; adverse possession failed to form because of the license.
Acknowledgement of title does not negate the possibility of hostility. In Aguayo v. Amaro (2013) 213 Cal.App.4th 1102, 1106., Jesus Amaro attempted to purchase the land in 1995, which, much like Hunter’s attempt to purchase rights to the stream, was an acknowledgement of ownership. Alfred, one of the two people who would inherit the property, orally agreed to sell his interest for $25,000, but not being in writing, Jesus could not rely upon this agreement to transfer ownership. So, Jesus took a series of steps to establish his interest.
First, Jesus gave Alfred a loan of $2,000 to open probate on the property so that Alfred could legally sell his interest. Alfred never opened probate, and thus never acquired an interest to sell.
Next, Jesus gave Alfred’s brother a loan of $2,000 and memorialized the loan in a written agreement. This second loan had no express purpose, but Jesus would use this loan later to convince the Brother to sign a rental agreement. (tricky, Jesus!)
Alfred died in 2000 without ever opening probate, and on January 1, 2000, Jesus entered a “Part Sale & Rental Agreement” with Alfred’s brother by which he would pay back the $2,000 loan and transfer his interest in the property in exchange for several years of below market rents—Alfred’s brother (perhaps unwittingly) agreed to rent the property that he had a right to own (through intestate succession) from a person who had no rights to the land at all!
By signing the lease, Alfred’s brother agreed to terms that transferred ownership of his interest to Jesus, but Jesus still had to worry about the half ownership that would have passed to Alfred, so he had to take steps to acquire that interest through adverse possession.
To establish his claim, Jesues then placed a sign on the property that stated that Jesus’s wife, Sofia, was now the owner. At this point, he and Sofia may have establish a clear and hostile intent to take the property from the owners.
Thus, despite their attempt to purchase the home originally, they established hostile possession by giving clear and actual notice to all potential interest holders (rightful owners).5Note, Aguayo v. Amaro (2013) 213 Cal.App.4th 1102 did not discuss hostility.
In the case of Lobro v. Watson (1974) 42 Cal.App.3d 180, the court speaks directly to this issue:
What is important to note in Lobro, supra, is that once an adverse possessor successfully establishes a claim for hostility, the statute of limitations will continue to run, even if he acknowledges that he did not own the land or that title was in another person: Mere acknowledgement of another’s position is not sufficient to stop the clock, when one entered without permission.
I can find no case that is on point for this issue.
As hard as I search, I can find no case in which a land owner stops the statutory clock by converting a hostile possession back into a permissive possession. This is not to say that it is not possible. For example, I doubt that any court would dispute a lease agreement between a landowner and an adverse possessor if the adverse possessor started paying monthly rent to the land owner. How could the possessor show hostility if they:
- have a signed lease agreement, and
- continually acknowledge the superior title of the land owner through rent payments?
While it may be possible to convert a hostile possession into a permissive possession with the adverse possessors compliance, I suspect it is much more difficult, if not impossible, to forcibly terminate a hostile possession absent an attempt to evict the wrongful occupant.
If we think about it, though, this makes sense. It makes sense that an adverse possessor should be able to force the issue, but a land owner should not, because if a land owner could forcibly return matters to the status quo, the rules established over the last hundred years wouldn’t make any sense. Let’s think about it:
Throughout the case-law, the burden is upon the adverse possessor to communicate hostile possession to the owner. If it is possible for a possessor to establish hostility by “giv[ing] clear and actual notice,” 7Johnson v. Ocean Shore Railroad Co. (Cal. App. 1st Dist. Mar. 31, 1971) 16 Cal.App.3d 429, 94. it would not make much sense for the owner to be able to defeat this by merely stating: “I hear your repudiation, and I give you my permission to continue.” If it were this simple for an owner to defeat an adverse possessor’s hostile possession, then there would be no meaning behind the rule that an adverse possessor may establish hostility by giving clear and actual notice.8Johnson v. Ocean Shore Railroad Co. (Cal. App. 1st Dist. Mar. 31, 1971) 16 Cal.App.3d 429, 94.
Given the heavy case law establishing how to convert permissive possession to hostile possession and the dearth of case law covering the reverse transaction, one might think that it is either extremely difficult or impossible to make the opposite move (absent consent or participation from the other party).
Absent a voluntary act by the adverse possessor (such as signing a new lease), it does not appear possible to forcibly convert a hostile possession into a permissive possession. It appears clear that it is not enough to merely send a letter stating: “I, the owner of the land, give you, the adverse possessor, permission to remain on my land.” Ultimately, it boils down to this: Clear and actual notice does not change the intent of the possessor or the nature of his or her possession.
If you are dealing with an adverse possession issue in Kern County, consider hiring Coleman & Horowitt, LLP.