The question presented for which you will write a brief answer is:

Question Presented

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?

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.

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.

Conversely, possession of two residential lots was not sufficiently ordinary or continuous when the claimant made infrequent visits and only limited improvements to the property. Madson v. Cohn, 10 P.2d 531, 532 (Cal. Dist. Ct. App. 1932). In Madson, the claimant paid the remaining installments of a sidewalk installation and paid the property taxes for more than six years. Id. He visited the property four to six times per year and never fenced or leased the property and never installed any buildings on the land. Id. He planted a few bushes and trees, but the plants were later killed by children who used the field to play ball. Id. There was no other work done on the property except for clearing foxtail off the land one time. Id. The court found the evidence did not establish continuity of possession sufficient to constitute adverse possession. Id. The court explained that the use of the property must be open and hostile such that the adverse claim unequivocally demonstrates to the rightful owner the adverse possessor’s intent to occupy the property. Id. Making infrequent visits and minimal improvements to the land did not amount to ordinary or continuous use of the property.

Affirmative Argument.  Here, a court will likely find that Blackhurst’s possession of the small parcel was continuous for two reasons. First, Blackhurst made ordinary use of the shed on the property to store her kayak equipment, and that use was appropriate for the property’s character. Second, she demonstrated her intent to continuously use the property by renting the large and small parcels when she was out of the country for a brief time.

First, Blackhurst used the small parcel in an ordinary manner consistent with its character. In particular, Blackhurst stored kayak equipment in a shed that she installed on the property and used the sloping pathway to move her equipment to the water. Blackhurst did not use the land during the winter months because the frozen lake would have prevented kayaking. Blackhurst took advantage of the property’s ordinary use by using it to access the lake during the summer months, like the claimant in Posey, who used the land to pasture cows only when it was accessible. Posey cite. Blackhurst’s use was sufficiently suited to the land’s character to constitute continuous possession, just as in Posey, where the court found the claimant’s infrequent use sufficient to establish continuous possession because the claimant used the land when it was accessible. Posey cite.

In addition, Blackhurst’s lease of the property during one summer when she studied abroad establishes her intent to continuously occupy the property. Blackhurst was abroad from May to August 2017, but she leased the land during June and July. Further, when the tenant left the property at the end of July, Blackhurst instructed the tenant to return the keys to her. This action is consistent with the Quimby court’s holding that the continuity of possession does not require “a continuous personal presence on the lot.” Quimby cite. Blackhurst’s temporary absence does not indicate that she intended to abandon the small parcel, much like the claimant in Merrill, whose temporary periods of vacancy did not amount to an intent to abandon possession. Merrill cite. In Merrill, the claimant did not occupy the land for six years but either leased the land or secured it and actively looked for a new tenant during that time period, just as Blackhurst leased her land for two of the four months she was out of the country and instructed the tenant to return the keys when the tenant moved out. Merrill cite. Moreover, Blackhurst’s instructions to the tenant to return her keys demonstrate her intent to resume occupancy of the small parcel. Blackhurst’s actions of using the property according to its ordinary use and renting and securing the property when she was out of the country likely establish her continuous possession of the property.

Counterargument. On the other hand, the neighboring owner, Newton, may argue that Blackhurst failed to establish continuous possession because she visited the property only five times per year. The neighboring owner could argue that Blackhurst could have used the property in the winter months for winter sports, such as skiing or snowshoeing. Like in Madson, where the court found that infrequent visits to the claimant’s residential lots were not sufficiently ordinary or continuous, here, Blackhurst’s use of the property only in the summer months is insufficient to establish continuous use of the property. Madson cite.

Rebuttal. This argument will likely fail because an adverse claimant does not have to continuously occupy a property to satisfy the continuous possession element. Madson is distinguishable from Blackhurst’s facts because unlike here, in Madson there was no evidence that the property was only usable during certain parts of the year. See Madson cite. Blackhurst could demonstrate that the sloping nature of the property could make it dangerous in snowy or icy weather, a condition of the property that is comparable to the regularly inaccessible swampland in Posey. As such, Blackhurst’s use of the small parcel only during the summer for kayaking is typical and ordinary based on its location and character.

Conclusion. Thus, Blackhurst will likely establish continuous possession of the property, despite a brief period of vacancy, because she made ordinary use of the property to store her kayak and use the lake in the summer.