Boundary & Easement  ·  October 16, 2026

California Adverse Possession: What CCP 325 Requires

The short answer

Code of Civil Procedure section 325 does two things. Subdivision (a) says what counts as possession when the claimant has no deed to the land. Subdivision (b) adds the requirement that decides most cases: the claimant must have "timely paid all state, county, or municipal taxes that have been levied and assessed upon the land" for the five years of possession, and must prove it "by certified records of the county tax collector."

In the ordinary boundary dispute, that is usually where the claim ends. We explain why in whether a neighbor can claim part of your yard, and this article does not repeat it.

This one is about the cases that do not end there. The tax element is not impossible to meet, and the California Supreme Court has said when it can be met. A mistaken belief about where the line runs does not defeat a claim; it is how most of these claims begin. And since January 1, 2011, the word "timely" has closed off a strategy that used to work.

What does adverse possession require in California?

The California Supreme Court listed the elements in Gilardi v. Hallam (1981) 30 Cal.3d 317, at page 321: "tax payment and open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner and under a claim of title." Section 325(b) supplies the period: the land must have been "occupied and claimed for the period of five years continuously."

Those elements apply to everyone. What changes is how the claimant proves possession, and that depends on whether the claimant holds a document.

Color of title versus claim of right

The Code of Civil Procedure sets up two tracks, in sections 322 through 325.

Color of title means the claimant entered under a written instrument, judgment or decree that purports to convey the land: a deed that turns out to be defective, for example. Section 322 treats occupation of "some part of the property" described in that instrument as possession of all of it, with one exception that matters in subdivisions: "when it consists of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot of the same tract." Section 323 then lists the ways a color-of-title claimant can show occupation, including land "usually cultivated or improved," land "protected by a substantial inclosure," and land used "for pasturage, or for the ordinary use of the occupant."

Claim of right means the claimant has no instrument at all, which describes nearly every neighbor-versus-neighbor dispute. Section 324 is much narrower: "the land so actually occupied, and no other, is deemed to have been held adversely." And section 325(a) limits what counts as occupation to two cases "only":

"(1) Where it has been protected by a substantial enclosure. (2) Where it has been usually cultivated or improved."

So a claimant without a deed gets only the ground actually enclosed, cultivated or improved. A fence line, a planted and maintained strip, a paved parking area: those are the facts these cases are built from. Walking across a strip, or storing things on it now and then, is a different and weaker record.

Does a mistake about the property line count as hostile?

Yes. This is the point most people expect to come out the other way.

A neighbor who built a fence in the wrong place, believing it was on the line, did not intend to take anything. It sounds as though that possession cannot be "hostile." California rejected that argument more than a century ago and the Supreme Court reaffirmed the rule in Gilardi. At page 322 the court said "the rule is settled in California that the requisite hostile possession and claim of right may be established when the occupancy or use occurred through mistake," and explained why: limiting the doctrine to deliberate takings "places a premium on intentional wrongdoing contrary to fundamental justice and policy."

The holding, at page 326:

"When it appears that the occupier enters the land mistakenly believing he is the owner, possession is adverse unless it is established by substantial evidence that he recognized the potential claim of the record owner and expressly or impliedly reflected intent to claim the disputed land only if record title was determined in his favor."

That leaves a narrow exception. An occupant who does not claim that the fence marks the true line, but intends to move it to the true line once that line is found, is not holding adversely. Gilardi described the exception at page 322, and at pages 323 to 324 it set the bar for proving it: the owner must show by substantial evidence that the occupant "recognized the potential claim of the record owner" and intended to claim the strip only if record title turned out to be his; the occupant's belief that he owned the strip does not, by itself, show an intent not to claim it. Evidence that the fence was meant to be temporary, or that the neighbors agreed to wait for a survey, is the kind of record that can support the exception. A neighbor who simply thought the fence was on the line is not within it.

One more point from the same line of cases. In Sorensen v. Costa (1948) 32 Cal.2d 453, quoted in Gilardi's footnote 3, the court rejected the argument that "if adverse possession may be based on a mistaken entry, the period of the statute of limitations runs only from the discovery of the mistake." The five years run from the possession, not from the survey.

In Gilardi itself, all of that went the claimants' way, and they still could not establish title. The reason was taxes. (The Supreme Court still reversed the judgment quieting title in the record owners, because the mistaken possession was hostile and the lack of tax payment did not bar a prescriptive easement.)

When can an adverse possession claimant satisfy the tax requirement?

The burden and the default rule

The burden sits with the claimant. Gilardi, at page 326: "The burden is on the adverse claimant of the fee to establish that no taxes were assessed against the land or that if assessed he paid them."

And the default rule runs against the claimant: "Ordinarily, when adjoining lots are assessed by lot number, the claimant to the disputed portion cannot establish adverse possession because he cannot establish payment of taxes." (Gilardi, at p. 326.) The county bills each owner for the parcel in that owner's deed. The strip on the far side of a misplaced fence is inside the record owner's parcel, so the record owner is the one paying for it.

Two ways around it

The Supreme Court identified two, at pages 326 to 327.

An error in the assessment roll. Where the roll's description is wrong, "the claimant may establish the error and his payment of taxes." In Sorensen, each owner occupied part of his own deeded parcel and part of his neighbor's, and each paid the tax bill sent to him. The court held the owners had paid taxes on the homes and lots they actually occupied and that the roll descriptions were erroneous.

Visible improvements that the assessor would have valued. Gilardi, at page 327:

"where the claimant by construction of buildings or other valuable improvements or by the building of fences has visibly shown occupation of a disputed strip of land adjoining the boundary, several cases have reasoned that the 'natural inference' is that the assessor did not base the assessment on the record boundary but valued the land and improvements visibly possessed by the parties."

That is the opening, and Gilardi shows how narrow it is. The claimants' predecessors had installed a sidewalk, a sprinkler system, nine poplar trees and a lawn on a strip about 15 feet wide, relying on a misplaced survey stake. The court still upheld the finding that they had not paid taxes on it. Both lots were assessed by lot number; there was "no direct evidence that the sidewalk or ornamental plantings were considered in the assessment"; and there were "no physical barriers, structures, or enclosures" excluding the record owners from the strip. So "the trial court was not required to infer" that the assessor had treated the strip as the claimants' land (at p. 327).

A garage or a house that sits partly over the line is the strongest version of the inference. Landscaping on an open strip is the weakest. A fence falls in between, and how much it is worth depends on the assessor's records and on what else is on the ground.

What prescriptive easements need instead

The same opinion, at page 322, states the rule for easements: a prescriptive easement requires the same elements "except that payment of taxes is required only if the easement has been separately assessed." That is why Gilardi's claimants, having lost title, were told at page 327 that the lack of tax payment "would not bar claim of prescriptive easement."

What the 2011 "timely" amendment changed

Before 2011, section 325 required only that the claimant have "paid all the taxes" levied and assessed on the land. Assembly Bill 1684 (Stats. 2010, ch. 55), effective January 1, 2011, reorganized the section into subdivisions (a) and (b), changed "paid" to "timely paid," and added the sentence requiring proof "by certified records of the county tax collector." The sponsor was the California Association of County Treasurers and Tax Collectors, and the Assembly Judiciary Committee's analysis described the problem it addressed: speculators paying the back taxes on parcels they were not using or occupying, then claiming five years of continuous possession.

The Court of Appeal applied the amendment in McLear-Gary v. Scott (2018) 25 Cal.App.5th 145 (1st Dist., Div. 3, No. A146719). Owners trying to extinguish a neighbor's easement by adverse possession had let four years of taxes on the parcel go delinquent and then paid them in a single lump sum. The court held, at pages 148 to 149, that a lump-sum payment of several years' worth of delinquent property taxes "did not constitute 'timely' payment of taxes for purposes of section 325, subdivision (b)," and reversed the judgment extinguishing the easement.

Two practical consequences follow. A claimant cannot cure a gap by paying later. And the proof is a specific document, the certified records of the county tax collector, year by year, not a canceled check or a homeowner's recollection.

We have not found a published decision addressing how the certified-records sentence interacts with the "natural inference" cases, where the argument is that the assessor valued an improvement on the strip as part of the claimant's parcel. A tax collector's record shows what was billed and paid for a parcel; it does not show what the assessor had in mind when valuing it. Anyone litigating that theory after 2011 should expect the question to be contested.

Calling it an easement does not avoid the taxes

When the tax element cannot be met, the claim usually comes back as a prescriptive easement. California courts look at what is actually being claimed. In Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182 (2d Dist., Div. 6), the court summarized its holding in a sentence: "adverse possession may not masquerade as a prescriptive easement." In Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020 (5th Dist., No. F073106), the court explained the reason at page 1033: "Because of the taxes element, it is more difficult to establish adverse possession than a prescriptive easement," and claimants "have often tried to obtain the fruits of adverse possession under the guise of a prescriptive easement to avoid having to satisfy the tax element." A prescriptive claim to use land in a way that excludes the owner from it is treated as a claim to own it, and the tax element comes back.

Who cannot acquire property by adverse possession?

Co-owners, without an ouster. One tenant in common living in a property alone does not, by that alone, take title from the others. In Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422, the Supreme Court quoted West v. Evans (1946) 29 Cal.2d 414, 418: "The exclusive occupancy by a cotenant is deemed permissive; it does not become adverse until the tenant out of possession has had either actual or constructive notice that the possession of the cotenant is hostile to him." The claimant bore "the burden ... to prove an ouster," and lost. That matters in inheritance disputes, where one sibling has lived in the family house for years and paid every tax bill. Paying the taxes is not, by itself, an ouster. For what co-owners can do instead, see the cotenant buyout right in a partition action.

Tenants. Under Code of Civil Procedure section 326, a tenant's possession is deemed the landlord's until five years after the tenancy ends, or, with no written lease, five years after the last rent payment.

Anyone claiming public land. Civil Code section 1007 provides that no possession "no matter how long continued" of property "dedicated to a public use by a public utility, or dedicated to or owned by the state or any public entity, shall ever ripen into any title, interest or right against the owner thereof."

Anyone claiming against an owner under a disability when title first passed. Code of Civil Procedure section 328 suspends the period, up to 20 years, while a person entitled to sue was "under the age of majority or lacking legal capacity to make decisions" at the time title "first descends or accrues," and then allows five years after the disability ends. The trigger is the disability at that moment, not one that arises later.

Title by prescription and quiet title

Civil Code section 1007 states the effect: occupancy for the statutory period "confers a title thereto, denominated a title by prescription, which is sufficient against all." The title arises from the possession, not from a court order.

But it does not appear in the county records on its own. In practice the claimant files an action to quiet title, and Civil Code section 1006 is a reminder of why the timing matters: occupancy short of the full period "is not a sufficient interest in real property to enable the occupant or the occupant's privies to commence or maintain an action to quiet title, unless the occupancy has ripened into title by prescription." Our quiet title and partition practice handles these actions from both sides.

Running the other way, Code of Civil Procedure section 321 protects the record owner. In an action to recover the property, an owner who establishes legal title "is presumed to have been possessed thereof within the time required by law," and another person's occupation "is deemed to have been under and in subordination to the legal title" unless the property was held adversely for five years before the action was filed. Section 318 is the other side of the same rule: an owner who has not been seized or possessed of the property within five years before suing cannot recover it.

What owners and claimants should do

If you are the record owner:

1. Get a survey. Everything else depends on where the line actually is.
2. Pull your assessor's map and tax bills. Confirm that the disputed strip is inside your assessed parcel and that you have paid on it. Under Gilardi, that fact ordinarily defeats a claim of title.
3. Look at what is physically on the strip. A building or a substantial fence on the neighbor's side is the fact pattern for the natural-inference argument. A lawn is not.
4. Put permission in writing if you are willing to tolerate the use. Permissive use is not hostile.
5. Consider the easement claim separately. Losing the adverse possession argument does not stop the neighbor from claiming a nonexclusive prescriptive easement or an equitable easement, and those claims ordinarily do not need the taxes. A claimed prescriptive easement that would exclude you from the strip is treated as a claim of title, and the tax element comes back. Courts grant exclusive equitable easements only rarely, but they can. Delay also matters on removal; see how long you have to sue over an encroachment.

If you are the one claiming the strip:

1. Order the certified records of the county tax collector for every year of the five you rely on, before anything else. If a year went delinquent, McLear-Gary indicates that paying it later will not count as timely.
2. Gather the assessor's records, including any appraisal record of improvements, if your theory is that the assessor valued what you built.
3. Document the dates the fence, wall or structure went up. Five years runs from possession, not from discovery of the mistake.
4. Do not assume that losing title means losing everything. Easement theories carry different elements and different risks.

Our boundary and easement practice handles these disputes for owners and for claimants.

Common questions

This article is general information about California law, not legal advice, and reading it does not create an attorney-client relationship. Statutes and case law change, and how they apply depends on the specific facts. Attorney advertising. Prior results do not guarantee similar outcomes. Robert B. Mobasseri, State Bar No. 193193, ROMO Law Group, Encino, California.