Facts: In June 2011, Blackhurst purchased property in North Lake Tahoe from her uncle. As part of their agreement, Blackhurst understood the property included both a large parcel and a smaller parcel across an alley from the larger parcel. The large parcel contained a two-bedroom home.

The small parcel abutted Lake Tahoe and contained a steeply sloping pathway to the lake’s edge. On the small parcel, Blackhurst installed a shed that held her kayak equipment. She used a combination lock to secure the shed. Blackhurst typically visited the shed five times a year between April and October to retrieve and use her kayak. In October of 2016, she discovered that teenagers were hanging out in the shed on the small parcel. She chased them off, changed the lock, and posted “No trespassing signs” on the parcel.

In 2017, Blackhurst enrolled in a study abroad program that lasted from May 1 to August 31. She was able to secure a tenant for the months of June and July. She left the tenant keys to her home, the combination for the new lock on the shed, and instructions to leave the keys in the house on July 31.

In June 2018, Newton, the owner of the property adjacent to the small parcel claimed that, according to county records, he owned the small piece of land. He told Blackhurst that he had been living in Norway for the past seven years and had been renting out his property. Newton, however, does not have any written lease agreements and Blackhurst said she has not seen any tenants on Newton’s land. Now, Blackhurst seeks to quiet title by proving that she acquired the small parcel through adverse possession.

Issue: Under California law, can Blackhurst satisfy the continuity of possession element for adverse possession when she used the small parcel to store kayak equipment and access Lake Tahoe, and rented the small parcel to a tenant for two months during the summer of 2017, but only visited the parcel five times per year?

CREAC:

Conclusion: Because Blackhurst used the small parcel of land to place a shed that held her kayak, and because she leased the land when she was not personally using it, she will likely establish continuous and uninterrupted possession.

Rules: Under the California adverse possession statute, “[w]here it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment, or decree, the land so actually occupied, and no other, is deemed to have been held adversely.” Cal. Civ. Proc. Code § 324 (West 2018). Land is deemed to have been possessed and occupied only where “it has been protected by a substantial enclosure” and “has been cultivated or improved.” Id. § 325.

To establish adverse possession, a plaintiff must prove (1) actual occupation that is sufficiently “open and notorious” to give the owner reasonable notice; (2) possession “hostile to the owner’s title,” which includes possession that occurred through mistake; (3) a claim by the possessor that the property is “how own, either under color of title, or claim of right”; (4) “continuous and uninterrupted” possession for five years; and payment by the possessor of “all taxes levied and assessed on the property.” West v. Evans, 165 P.2d 219 220 (Cal. 1946).

Explanation and case illustrations: To determine whether a use amounts to continuous possession, courts examine a claimant’s intent. See Montgomery & Mullen Lumber Co. v. Quimby, 128 P. 402, 404 (Cal. 1912); Merrill v. Hooper, 13 P.2d 786, 787 (Cal. Dist. Ct. App. 1932). If a claimant demonstrates intent to abandon the property, courts will not find continuous occupation. Merrill, 13 P.2d at 787. The claimant’s actions in Merrill, for example, did not evince “any intention of abandonment” over a period of six years. Id. During that time, the claimant rented the property to commercial establishments, and later to tenants whom she was forced to evict. Id. Despite the property’s vacancy, the court found that because the claimant kept the property locked and advertised for a new tenant, she demonstrated continuous occupancy. Id.

Further, courts will find continuous use when a claimant uses a property for its “ordinary” use, which “means a use appropriate to the location and character of the property.” Posey v. Point Bay Realty, 7 P.2d 1020, 1022 (Cal. 1932). In Posey, the swamp land was useful only for pasturage, and its poor quality and the high water of an adjoining bay made it useable during only a portion of the year. Id. The claimants pastured their cows on the claimed swampland during only part of the year because the character of the land made it usable only periodically. Id. Because highwater often made the swampland inaccessible and high salinity made it poor quality, the use was “ordinary” for the particular piece of land and sufficiently continuous. Id. If adversely claimed land is suitable only for particular or minimal use, a claimant satisfies the requirement for continuous use if he uses the land accordingly. Id. The defendants adversely used the land “open, visibly, and notoriously” according to the limitations of the land’s usability, and thus the court found that they satisfied they established adverse possession. Id.