Preciado v. Wilde, California Court of Appeal, Second District, 42 Cal.Rptr.3d 792, 06 Cal. Daily Op. Serv. 3817, 2006 Daily Journal D.A.R. 5563

By Brenna Moorhead

Tenants in common have equal possessory rights in land, therefore more is required to establish title by adverse possession against a cotenant that by adverse possession against a stranger. In Preciado v. Wilde, Plaintiff Preciado and his wife filed an action to quiet title based on adverse possession against Wilde, Preciado’s niece. Preciado and Wilde became tenants in common when Wilde inherited interests in two parcels of real property from her father after his death in 1984. 

Establishing title by adverse possession against a stranger requires:

  1. actual possession providing reasonable notice to the owner;
  2. possession hostile to the owner’s title;
  3. a claim to the property under color of title or claim of right;
  4. five years of continuous, uninterrupted possession; and
  5. payment of taxes levied and assessed upon the property during the period. 

Adverse possession against a cotenant requires more with respect to notice of the intent to oust the co-tenant of its interest in the common property. One tenant cannot by mere exclusive possession acquire title of the property.

Here, Preciado did not notify, exclude or restrict the access to the property and therefore he failed to carry its burden. He further undermined his claim by offering to buy his niece’s interest in the property. His testimony regarding this action constituted an admission that his niece held legal title to the properties. Therefore he could not overcome the burden of proof with respect to claims of title or color of title. Wilde was able to substantiate the validity of her interest as atenant in common by introducing probate documents and the testimony of a title expert. The appeals court found that the trial court reasonably inferred that Wilde had not abandoned her interest in the property and that Preciado did not establish title by adverse possession.

For more information please contact Brenna Moorhead.  Brenna Moorhead, AICP, is an associate in the Real Estate, Land Use and Environmental Practice Group in Sheppard Mullin’s San Francisco office.