By Glen Hansen

In Nielsen v. Gibson (October 13, 2009) 178 Cal.App.4th 318, the Court of Appeal for the Third Appellate District held that a couple who bought property from the record owner’s parents while the owner was permanently out of the country was entitled to a judgment for quiet title because the couple improved, maintained, fenced and irrigated the property, and paid the property taxes for almost 10 years.

David Nielsen and his wife Tricia (“Nielsens”) brought this action against Guy Gibson (“Gibson”), in his capacity as executor of the estate of Gayl Bender (Gayl) to quiet title to the subject property adjacent to the Nielsen home. Gayl acquired the subject property by gift deed from her parents, Lyman and Mary Bender. Gayl built a cabin on the subject property before she left permanently for Ireland in the early 1990’s.   In 1997, Mary Bender went to Ireland to be with Gayl. That same year, the Nielsens wanted to buy from the Benders three lots in Granite Bay, California, which included a residence and the subject property. The Benders also wanted to complete the sale, but the transaction was complicated because the subject property had been gift-deeded to Gayl, who was still in Ireland, and no one had power of attorney to act on her behalf. Lyman Bender was informed that the Irish courts had determined Gayl was incapable of managing her affairs and did not have the capacity to make decisions with legal consequences. Lyman Bender rejected the notion that Gayl was incompetent, but he wanted to sell the subject property to the Nielsens so he could move to Ireland to join his wife and daughter. So in 1998, Lyman Bender executed two deeds in favor of the Nielsen’s: a grant deed for the residence and a quitclaim deed for the subject property. When Lyman Bender executed the deeds, neither the Benders nor their family trust had any interest in the subject property, which was owned by Gayl. The Nielsens moved into the cabin and began improving and maintaining the property. They fenced the property, irrigated it, built a go-cart course on it, and paid the property taxes for almost 10 years before filing their quiet title action.

Following an unreported court trial, the trial court found that the Nielsens had established that they had acquired the subject property through adverse possession and entered judgment quieting title in the Nielsens. Gibson, the executor, appealed. The Court of Appeal affirmed.

The Court held that the trial court did not err in concluding that the Nielsens possession of the property was so open and notorious that the record owner of the property had to be presumed to have notice of their adverse claim. A claimant who hopes to prove adverse possession must show his possession of the property was “by actual occupation under such circumstances as to constitute reasonable notice to the owner,” which some courts describe as requiring that the adverse claimant’s possession be “open and notorious,” i.e., visible to the true owner and others. Whether the occupation of an adverse possessor is sufficiently open and notorious to constitute notice to the owner is a question of fact in each case and depends on the particular land and its condition, locality, and appropriate use. Here, those conditions were met. The Court further explained that when an adverse claimant is in open possession and the true owner fails to protect his or her interests and remains in ignorance, it is the owner’s fault. Therefore, the fact that Gayl was out of the country and lacked actual notice is immaterial. 

Glen C. Hansen is a senior associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.