Antagonistic Possession of Actual Property that’s Being Foreclosed

A quiet title motion is delivered to set up, or “quiet”, an curiosity in actual property between adversarial events. One can set up any curiosity in property or cloud upon title. (CCP §760.010) A standard purpose is to determine title by adversarial possession. Antagonistic possession is a method of buying title to actual property via steady possession or use for a specified time frame. One of many components required to show adversarial possession is that the possession or use have to be “hostile to the proprietor’s title.” What occurs if the adversarial possession happens on property with a deed of belief recorded, and the lender forecloses? In a current California choice, the adversarial possessor misplaced as a result of the adversarial possession didn’t rely towards the Lender till the lender acquired the property on the trustee’s sale.

Sacramento-Quiet-title-attorneyIn Charles Scott Bailey v. Citibank N.A. house owners of property in Kern County had a deed of belief. They went into default and a Discover of Default was recorded, so the house owners filed a sequence of bankruptcies. Apparently, the lender by no means accomplished the foreclosures, the bankruptcies concluded, and the house owners walked away from the property. Plaintiffs, seeing it empty in 2013, noticed that as a inexperienced gentle to take possession and pay property taxes. Citibank grew to become the successor to the unique deed of belief in 2017, and recorded a brand new discover of default, foreclosed, and have become the brand new proprietor in 2018.

Just a few months later Plaintiffs filed their quiet title go well with. There was a lot hubbub within the courts, a default & judgment for quiet title by adversarial possession, the default judgment put aside, and appeals. For our functions, a problem on attraction was whether or not, as a matter of legislation, plaintiffs’ possession was adversarial to Citibank for the required five-year interval.

The courtroom started by noting that the weather of an adversarial possession declare include the next:
(1) precise possession by the plaintiff of the property beneath declare of proper or colour of title;
(2) the possession consists of open and infamous occupation of the property in such a fashion as to represent affordable discover to the true proprietor;
(3) the possession is adversarial and hostile to the true proprietor;
(4) the possession is uninterrupted and steady for at the very least 5 years, and (5) the plaintiff has paid all taxes assessed towards the property in the course of the five-year interval.

In the course of the time interval when Citibank’s curiosity was merely that of the beneficiary of the 2005 deed of belief (i.e., a lienholder), plaintiffs’ possession of the property wouldn’t be thought-about hostile to Citibank’s rights. Moreover, plaintiffs might achieve no higher title than that of the unique house owners they’d dispossessed; particularly, title topic to the 2005 deed of belief. Consequently, the plaintiffs’ adversarial possession declare was topic to and eradicated by Citibank’s foreclosures of the 2005 deed of belief.


The courtroom defined that the doctrine of adversarial possession pertains to possessory estates, i.e., it includes possession of property hostile to the corresponding rights of the true proprietor. Citibank’s curiosity within the property was that solely of a belief deed beneficiary. In sensible impact, a deed of belief is a lien on the property, and the precise to possession doesn’t move to the beneficiary. Thus, possession is presumed to be amicable and never subordinate to the mortgage. It could not be adversarial till the precise to possession of the property is acquired via foreclosures. Citibank solely gained a possessory curiosity after the foreclosures and recording of the Trustee’s Deed in 2018. Due to this fact, the plaintiffs’ occupation of the property was not averse to Citibank till the deed was recorded in 2018, just a few months earlier than plaintiffs filed their lawsuit. (If the possession began earlier than the deed of belief was recorded, the consequence could have been completely different)

One more reason the plaintiffs failed is that the adversarial possessors can solely acquire the title which the house owners had when the adversarial possession started – they can’t purchase a higher title than that held by the proprietor. The title obtained by a trustee’s deed on foreclosures relates again to the standing of the title held by the trustor (proprietor) when the deed of belief was initially executed and recorded.

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