Today, I consulted on a situation, which reminds me that sometimes the creative solution is the best solution. What appeared to be a case that required probate might actually be better handled through adverse possession.

The Situation

A fellow real estate agent brought a file to me. He had a willing buyer and a willing seller. The home was under contract, but the Escrow refused to move forward with the transaction. Escrow told him: “You need to open probate!”

Because I’m the best person he knows to handle probate matters, we took some time to review his file.

He brought me all the deeds that Escrow gave him, and together, he and I traced the title. The deeds included many quitclaim and grant deeds that were drafted and executed by people who were not attorneys and were not trained in the meaning and effect of the documents. Still, they were correct enough to be recorded, and they did impact the title, just not as the drafters intended.

The well-meaning owners had made mistakes and unintentionally created a cloud on the title. The property that he was trying to sell was actually owned as a tenant in common with a person who owned the property more than 40 years ago but was never removed from the title properly.

Because the person retained ownership, the normal course of action would be to open probate and to locate that person’s heirs and descendants to inform them that they now shared ownership of a home that they never knew existed. (Imagine the email: You are the long-lost descendant of Jane Smith, and you now own a part of a house in Bakersfield, CA.)

Based on the documents, it was clear that the prior owner intended to transfer ownership, and all the people after that person thought they had clear title, so giving half the house to the heirs as a result of a mistake would be an exercise in injustice. But, this is why California offers “adverse possession!”

Adverse Possession

Adverse possession is often thought of as a method by which one person can legally “steal” the real estate belonging to another. However, it is most often useful in correcting mistakes like this one. Where a person had intended to transfer title but failed, the new owner begins to take the property through a “hostile possession.”

The conditions for adverse possession have to be “just right.” So, if you think that you have a situation where an adverse possession claim might be right for you, set up a consultation so that we can review the facts and give you some sound advice.

In the present situation, the best advice we could give to the real estate salesperson was instructions on how to complete the current sale in a way that protects the interests of the seller and the buyer.

Call Coleman & Horowitt LLP at 661-325-1300 and ask for Jared Clemence, a Kern County Probate Attorney, if you wish to consult regarding a cloud on the title. And together, we can attempt to resolve the issue.