Adverse Possession if Property Owner is Deceased with No Probate Estate

[navolution]

My question involves real estate located in the State of: CA

Ok, there is a property where the owner is deceased and there is a mortgage. There is no open probate and it looks like the bank is starting foreclosure. Heirs are out of state and are not going to try and do anything as there is no real equity in property because of loan and existing conditon of the home.

Here is my thought for taking AP. Bring mtg current (stopping foreclosure), take possession, rent property out for 5 yrs and paying monthly mtg payments and yearly property taxes. At the end of 5 yrs proceed to get title. What is the best way and any potential hurdles of doing so?

I am willing to use attorney to make this happen thus any recommendation would be fine.

[Stephen Calder]

Some states will not allow a taking by AP if it is not innocently entered into. I have seen the term: having the "mind of a thief". Some states have no problem whatsoever with the adverse possessor having the "mind of a thief". They just desire to have the title cleared up. But some states will not allow AP if at the outset you knowingly attempt to take another's property. I don't know about California. The California AP statute that I know of doesnt' address that. But, most states' statutes won't address that. That is an issue that would most likely be worked out by court decisions.

I guess what you are trying to gain from this is the property without the cost of what has been up to this point. But, if there is no equity, then what are you going to gain? You still are going to have to pay off the mortgage.

Stephen Calder (Land Surveyor, not a Lawyer)

[eapls2708]

In this situation, you do not have Color of Title, meaning that you have no basis to believe that you have a valid claim. That doesn't make it impossible, but it does make it less likely that the courts would view it as a valid possession. If you were to go that route, there is also the risk that at any time within the 5 years that you have to maintain exclusive possession, that the next of kin, being the only valid heir(s) lacking a will to the contrary might take action to dispossess you of the property. In that case, you will not have fulfilled the time and tax requirements to perfect the claim and would likely lose your investment in the property.

But it sounds as if you are not averse to paying for the property. Hire your lawyer to get specific advice, but offering a deal to the heirs whereby you assume the loan and perhaps pay them some nominal amount (if there is any value to the property over the outstanding loan amount) may be a way where everyone's best interests are served.

AP is covered in the CA Civil Code of Procedure §§ 315-330. § 325 addresses the situation where the claim is not based upon written title. Provisions in state codes that allow AP not based upon Color of Title were probably placed in to deal with the situation of abandoned land claims. That happened quite a bit as the West was being settled. Someone would come from the East, try a go at farming, ranching, mining, whatever, and sometimes find that either the land or they themselves were not suited to the endeavor, or perhaps they left for the promise of better opportunity elsewhere. And occasionally, a settler might die without any heirs. At the time, the government and society in general wanted land put to productive use. AP, particularly AP without color of title was permitted so that if a landowner had abandoned the property and there was another willing to put it into productive use, the law provided a reasonable avenue to perfect title for the person putting in the work to make it productive while still providing what was seen as a reasonable period for the person with written title to redeem that title and re-occupy the land.

In more settled places, and in modern times where the need to put land into productive use is not as great, AP is often seen as a means of legalized land theft. Indeed, some try to use it that way, but that is not the intent, and courts generally are loathe to aid in it by perfecting dishonest occupation. Occupation in good faith is often another required element of AP. In this case, navolution, that probably means that even if you make it to 5 years, the court may look at whether you made a good faith attempt to locate any valid heirs and to strike a deal with them prior to moving to take possession.

[LandSurveyor]

I wouldn't be surprised to see a race for the courthouse at some point.

Even without a will certain next of kin and heirs can file with the superior court to be appointed administrator of the estate, and proceed with probate. The statutory fee for the administrator is $4,000 of the first $100,000 of valuation, and mortgages are not taken onto consideration in this evaluation. The attorney for the estate is also allowed an equal statutory payment. Even in today's economy, there are not many homes in California worth less than $100,000.

[mdindestin]

I can't imagine an attorney helping you wih this trespassing scheme. None of the ones I know would particpate.

Also, when a mortgage goes into foreclosure, the loan is accelerated and the entire balance plus fees are due. The additional late fees, interest charges, attorney costs, etc are usually substantial. That means that even if the loan is not accelerated you're going to have to come up with a lot of out of pocket expense to stop the forecolsure. At which time, one of the heirs may seek to evict you.