Leonard and Jennie Preciado are tenants in common with a niece, Elizabeth R. Wilde, in two adjoining properties. A house originally stood on one property, but it was torn down after Wilde’s father, who lived in it until 1984, passed on and Wilde inherited his three-tenths interest in the parcels.
On Sept. 9, 2002, Leonard Preciado offered his niece $11,605 in writing for her interest in the parcels. But he never paid her the money.
Purchase Bob Bruss reports online.
In this lawsuit, the Preciados sued Wilde for quiet title based on adverse possession for the required number of years. At the trial, Wilde testified she paid the property taxes until 1992 when Leonard began paying them. She also said she visited the properties “a couple of times a year” and was never excluded by the Preciados.
Although Leonard planted crops on one-third of the property for personal consumption, and erected a fence in 1960 to keep a horse on part of the property, Wilde testified she was never told not to enter the property when she wanted to do so.
If you were the judge would you convey title by adverse possession to Leonard and Jennie Preciado for the three-tenths interest owned by Elizabeth R. Wilde?
The judge said no!
When a tenant-in-common co-owner seeks to claim title by adverse possession against a fellow co-owner, the claimant must meet the adverse possession title tests, the judge began.
These tests require open, notorious, hostile, continuous and exclusive use, plus payment of the property taxes, for the number of years required by state law, he continued.
These rules are the same whether claiming adverse title against a property owner, or a co-owner of a jointly owned property, he noted.
“In short, one tenant in common cannot by mere exclusive possession acquire the title of his co-tenant,” the judge explained. The 2002 offer to buy Wilde’s interest in the property shows lack of hostility or adverse possession, he emphasized.
Adverse possession attempts by one co-owner against another co-owner are very rare, the judge noted. To be entitled to claim such title, he remarked, the adverse possessor co-owner must prove the other co-owner has been kept out of the property for the required number of years, he commented.
“Leonard admitted he never excluded Wilde from the property. He never restricted her access, or informed her he was challenging her ownership,” so the Preciados failed to prove “ouster” of Wilde and their adverse possession claim fails, the judge ruled.
Based on the 2006 California Court of Appeal decision in Preciado v. Wilde, 42 Cal.Rptr.3d 792.
(For more information on Bob Bruss publications, visit his
Real Estate Center).
