Absentee owner fights to keep rights to real estate

Leonard and Jennie Preciado are tenants in common with aniece, Elizabeth R. Wilde, in two adjoining properties. A house originallystood on one property, but it was torn down after Wilde’s father, who lived init until 1984, passed on and Wilde inherited his three-tenths interest in theparcels.

On Sept. 9, 2002, Leonard Preciado offered his niece $11,605in 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 titlebased on adverse possession for the required number of years. At the trial,Wilde testified she paid the property taxes until 1992 when Leonard beganpaying them. She also said she visited the properties “a couple of times ayear” and was never excluded by the Preciados.

Although Leonard planted crops on one-third of the propertyfor personal consumption, and erected a fence in 1960 to keep a horse on partof the property, Wilde testified she was never told not to enter the propertywhen she wanted to do so.

If you were the judge would you convey title by adversepossession to Leonard and Jennie Preciado for the three-tenths interest ownedby Elizabeth R. Wilde?

The judge said no!

When a tenant-in-common co-owner seeks to claim title byadverse possession against a fellow co-owner, the claimant must meet theadverse possession title tests, the judge began.

These tests require open, notorious, hostile, continuous andexclusive use, plus payment of the property taxes, for the number of yearsrequired by state law, he continued.

These rules are the same whether claiming adverse titleagainst a property owner, or a co-owner of a jointly owned property, he noted.

“In short, one tenant in common cannot by mereexclusive possession acquire the title of his co-tenant,” the judgeexplained. The 2002 offer to buy Wilde’s interest in the property shows lack ofhostility or adverse possession, he emphasized.

Adverse possession attempts by one co-owner against anotherco-owner are very rare, the judge noted. To be entitled to claim such title, heremarked, the adverse possessor co-owner must prove the other co-owner has beenkept out of the property for the required number of years, he commented.

“Leonard admitted he never excluded Wilde from theproperty. He never restricted her access, or informed her he was challengingher ownership,” so the Preciados failed to prove “ouster” ofWilde and their adverse possession claim fails, the judge ruled.

Based on the 2006 California Court of Appeal decision in Preciadov. Wilde, 42 Cal.Rptr.3d 792.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

Copyright 2006 Inman News

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