Nellie Gail Ranch Owners Association v. McMullin

Facts: An owner of property in a homeowners’ association (HOA) community applies to the HOA to construct a new retaining wall. The application represents the wall is to be built on the owner’s property, but is actually to be constructed on common property owned by the HOA. The owner constructs the wall without the approval of the HOA and does not pay additional taxes on the property enclosed by the wall.

Claim: The HOA seeks title to the property and to compel the owner to remove the wall, claiming the owner cannot obtain title to the property through adverse possession since the owner did not pay property taxes, which are levied and assessed to individual owners within the HOA consistent with standard law governing taxes on HOA common areas, as a requisite for obtaining title through adverse possession.

Counter claim: The owner seeks to obtain title of the property through adverse possession, claiming they are excused from paying taxes on the property as a requirement of proving adverse possession since the common property has no value and no taxes are paid on it.

Holding: A California court of appeals holds the owner may not obtain title to the property through adverse possession and is to remove the wall since the owner is not excused from meeting the requirement of paying property taxes on the disputed property. [Nellie Gail Ranch Owners Association v. McMullin (October 3, 2016)_CA4th_]

Editor’s note — The payment of property taxes is but one of the qualifying requirements necessary to establish title through adverse possession, and is the primary rule the court based this decision on.

An adverse possessor needs to provide a certified record of tax payments from the county tax collector to prove they have paid the property taxes during each year of the five continuous and notorious year of qualifying occupation. Additionally, the adverse possessor needs to pay any back taxes owed on the property at the time they took possession.

For a full discussion of the qualifying requirements for perfecting a claim of adverse possession, see Legal Aspects of Real Estate Chapter 23: Real estate can be stolen.

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