Appellate Court Clarifies Requirements For An Adverse Possessor’s Notice of Possession

John Sciacca headshotBy John Sciacca

Recently in Carr v. Rosien (2015) 2015 DJDAR 8147, the Fourth District Court of Appeal in California ruled that an adverse possessor’s lis pendens was void because the adverse possessor failed to mail it to the address shown in the assessor’s role, regardless of the address validity. In the case, Mr. Carr filed a quiet title action for real property against Ernest Ortiz and Anna Colon. A quiet title action is typically brought to determine who the real owner of real property is or who possesses what interest in the property. Here, Mr. Carr brought a quiet title action for real property in Riverside under the claim that Mr. Carr had adverse possession of the subject property. Adverse possession is where a trespasser takes a title to property by having a hostile claim, actual possession of the property, open and notorious possession of the property, exclusive and continuous possession of the property, and payment of taxes on the property for five continuous years.

In this matter, Carr claimed to have been in adverse possession of the subject property since March 8, 2001. However title was held to the property by Ortiz and Colon. On March 5, 2004, Colon executed a deed purporting to convey her half of the lot to Michael Lopez. On May 12, 2006, Carr filed a quiet title action against Ortiz and Colon on the premise that Carr held title to the property based on adverse possession. As required in quiet title actions, on May 18, 2006, Carr recorded a lis pendens against the subject property.

A lis pendens literally means a notice of pending action so that individuals involved in any transactions in regards to that particular real property have knowledge of the pending lawsuit involving the real property. Under California law, it is required that the lis pendens be mailed to the adverse party or owner of the property after a review of that county assessor’s role. Should there be no information regarding the adverse party’s or owner’s contact information on the assessor’s role then the claimant may file a declaration that there is no known address for service on an adverse party or owner.

However, in this matter, Carr did not mail a notice of the lis pendens to either Ortiz or Colon. Colon’s contact information was on the assessor’s role.  Carr argued that it was believed that the assessor’s role had the incorrect contact information for Colon. However, the court held that at the very least Carr was still required to mail notice to the information provided for Colon on the assessor’s role even if that information was no longer correct information. The court therefore ruled that the lis pendens on the property as it related to Colon was void.

The takeaway from this case is that unless a copy of the lis pendens is mailed to all known addresses of the adverse parties and owners of record as shown by the county assessment role, the lis pendens will be void and a cloud on the title to the real property may exist. Here, Carr did not mail a lis pendens to Colon’s address even though it was listed on the assessor’s role. There was no excuse that the address was not valid and that the notice would not have reached Colon. Thus, the lis pendens was void as to Colon and also as to her transferee, Lopez.

It is important to remember whether or not a lis pendens was mailed to the adverse party or owner of the property in cases involving an action for quiet title. Failure to do so could result in a cloud on the title.

Powers Miller has extensive experience in defending individuals in real property cases and disputes. Powers Miller and their attorneys have been involved in cases involving nuisance, adverse possession, trespass, boundary disputes, and easements. These experiences include trials to verdict and appellate practice.


 

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