Suarez v. Herrera

Filed 10/15/08 Suarez v. Herrera CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

Appellant Jeanne Michelle Suarez brought this action against her cousins to quiet title in a family home formerly owned by their grandparents. The trial court found Michelle^[1]failed to establish she had obtained sole title to the house by adverse possession. We agree and shall affirm the judgment.

BACKGROUND

The facts in this case are virtually undisputed.

The property at issue is a 1,300 square foot residence on a double lot in Roseville, initially owned by the parties grandparents, Philip and Maria Herrera. In 1985, Philip and Maria deeded the house to their two children, Reynold and Lillian. Lillian is appellant Michelles mother. The deed had the effect of granting Reynold and Lillian each an undivided one-half interest as cotenants.

From 1985 to his death, Reynold visited his parents and other family members at the house during holidays and some weekends, but he never lived there.

Philip died in 1990. Sometime before his death, Philip had a stroke; Lillian moved into the house with her parents to help care for him, and lived there continuously thereafter.

Reynold died intestate in 1996, survived by a wife and three children, Phillip, Mary, and Jolene. After his death, Reynolds wife and children continued to come to the house to visit the family once or twice a year. A car belonging to Reynold remained on the property after he died, and it was still there at the time of trial. Among Reynolds immediate family, only his daughter Jolene ever lived in the house; Michelle testified Jolene lived there for three months, but could not remember the year.

In 1997, after Reynold died, Lillian executed and recorded a deed purporting to transfer the entirety of the property to herself in her capacity as trustee of the Lillian M. Suarez Revocable Trust. Lillian also began to pay the property taxes on the residence. When Lillian and Michelle discussed the property, Reynolds interest in the property was never mentioned.

Lillian died in 2000. After Lillian died, her daughter, appellant Michelle, moved into the residence and took over paying the property taxes.^[2] Michelle also recorded a grant deed in her capacity as successor trustee of Lillians trust, transferring the property to herself individually.

Maria died in 2002.

Reynolds wife died in mid-2004.

Reynolds son, Phillip, then took up the administration of Reynolds estate. A few months later, Michelle received a notice from Phillip, in his capacity as administrator of Reynolds estate, and Phillips wife told Michelle that she and Phillip owned part of the house and planned to visit and inspect it.

Michelle then brought the instant complaint against (among others) Phillip (in his capacity as administrator of Reynolds estate), Mary, and Jolene. She alleged that Lillian for five years asserted an open, exclusive, hostile and adverse possession of the property vis--vis Reynold and his heirs.

At the court trial, Michelle admitted she never communicated to her uncle Reynold or any of her cousins that she or Lillian considered themselves to be sole owners of the house, or that their possession was in any way adverse to Reynolds family.

Phillip testified he never went to the recorders office in Placer County to look at the records pertaining to the house.

The court denied Michelles attempt to quiet title to the property. In its oral statement of decision (Code Civ. Proc.,  632), the court found that Michelle failed to establish that her possession of the property -- or that of Lillian before her -- was hostile to Reynold and his heirs.

DISCUSSION

Michelle insists on appeal that she sufficiently demonstrated the elements necessary to establish her adverse possession of the undivided half-interest granted to Reynold by his parents in 1985. In an action to quiet title based on adverse possession the burden is upon the claimant to prove every necessary element: (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. (2) It must be hostile to the owners title. (3) The holder must claim the property as his own, under either color of title or claim of right. (4) Possession must be continuous and uninterrupted for five years. (5) The holder must pay all the taxes levied and assessed upon the property during the period. [Citations.] (Dimmick v. Dimmick (1962) 58 Cal.2d 417, 421-422; Preciado v. Wilde (2006) 139 Cal.App.4th 321, 325.)

But, it is well established that additional principles arise when a claim of adverse possession is asserted by one cotenant against another. (Preciado v. Wilde, supra, 139 Cal.App.4th at p. 325.) Because each tenant in common has a right to occupy the whole of the property, [t]he possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others[.] (Johns v. Scobie (1939) 12 Cal.2d 618, 623; Preciado v. Wilde, supra, 139 Cal.App.4th at p. 325.) As a result, [b]efore title may be acquired by adverse possession as between cotenants, the occupying tenant must bring home or impart notice to the tenant out of possession, by acts of ownership of the most open, notorious and unequivocal character, that he intends to oust the latter of his interest in the common property. [Citations.] Such evidence must be stronger than that which would be required to establish a title by adverse possession in a stranger. [Citation.] (Ibid., (italics added), quoting Russell v. Lescalet (1967) 248 Cal.App.2d 310, 314; see also 6 Miller & Starr, Cal. Real Estate (3d ed. 2000)  16:32, p. 70.)

Applying these principles, we reject Michelles initial suggestion on appeal because she and Lillian have been in possession of the Residence from 1985 through the current date, a period of more than 20 years with the knowledge of Reynold and his family, she has established the first requirement of actual possession under such circumstances as to constitute reasonable notice of an intended adverse claim. Reynold and defendants were entitled under the law to assume that Lillian, and Michelle after her, were living in the house and maintaining it for the benefit of all the owners. (Johns v. Scobie, supra, 12 Cal.2d at p. 623.)

We likewise reject Michelles claims she satisfied the requirement of demonstrating hostility to defendants claim to the property by the recording of two deeds: Lillians recordation of a grant deed in 1997 that purported to convey title of the resident to herself as trustee of her revocable living trust, and Michelles deed after Lillians death conveying title to herself. These deeds, Michelle insists, effectively put defendants on constructive notice that she and Lillian were making a claim to the property adverse to defendants interest.

The law has long been otherwise. The mere . . . recordation of a deed to one of the cotenants, in which the entire interest in the property is described, is not sufficient by itself to constitute an ouster or to give notice to the cotenant out of possession of [the other]s hostile intent. (6 Miller & Starr, supra,  16:32, p. 70, fn. omitted; West v. Evans (1946) 29 Cal.2d 414, 418 [the recordation of a deed purporting to convey the entire property in land to a tenant in possession is not, as a matter of law and independent of any other fact, notice to his cotenant of the adverse character of the grantees possession]; Wilkerson v. Thomas (1953) 121 Cal.App.2d 479, 487-488.) This is true even when the cotenant in possession has also paid the property taxes. (West v. Evans, supra, 29 Cal.2d at p. 418.)

In sum, the womens continued use of the residence and their recordation of the deeds were not, as a matter of law, sufficient notice to defendants of the adverse character of their possession. As nothing in the record suggests Michelle or Lillians conduct toward Reynold and defendants would have put them on notice that Lillian and Michelle claimed to own the entire property, the trial court properly concluded that Michelle cannot establish they acquired the whole of the property by adverse possession.

DISPOSITION

The judgment is affirmed.

BLEASE , J.

We concur:

SCOTLAND , P. J.

BUTZ , J.

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^[1] Use of first names in this family dispute helps us provide a concise recitation of the facts. No disrespect is intended. In addition, we note that the parties and the court more often referred to plaintiff at trial by her middle name, Michelle; we shall follow suit.

^[2] Michelle testified she had also lived in the house for a short time in or about 1986.