"ADVERSE POSSESSOR" GETS HIS DAY IN COURT
By Earl R. Wallace. Esq.
People v. Lapcheske (1999) 73 Cal.App.4th 571
Lapcheske operated an enterprise in which he took over residential real properties that he believed had been abandoned by the property owners, and rented the properties on his own behalf. Lapcheske claimed that his actions were not criminal because he entered the properties in question with the intent of ultimately acquiring them by adverse possession. A jury found Lapcheske guilty of "rent skimming" and three counts of conspiracy (conspiracy to commit trespass, conspiracy to commit grand theft, conspiracy to commit rent skimming). Lapcheske appealed the verdicts. The appellate court affirmed the convictions, except as to conspiracy to commit grand theft.
California law provides that title to real property may be acquired by adverse possession when all of the following requirements are met: (1) the user held possession under a claim of right (mere possession of real property by the user or his or her tenant is sufficient); (2) the user was in actual, open and notorious occupation of the real property such as to constitute notice to the true owner; (3) the occupation was both exclusive and hostile to the true owner; (4) the possession was uninterrupted and continued for at least five years; (5) the user paid all taxes assessed against the property during the five year period.
Until challenged by the actual title holder, a person attempting to acquire title to real property by adverse possession has a right equal to that of the actual title holder to place a tenant in possession of the property and collect rent from the tenant.
However, under rent skimming statutes, any rent collected during the first year after a person acquires, or takes possession of, real property must be first applied to the mortgage. Lapcheske did not apply rent collected to an existing mortgage. As such, he was guilty of rent skimming and conspiracy to commit rent skimming.
Lapcheske contended that he could not be a "trespasser" because the law specifically allows acquisition of real property by adverse possession. The appellate court ruled that although Lapcheske had a claim to title by virtue of his tenants' possession, he was nothing more than a trespasser as to the true owner. As such, his conviction for conspiracy to commit trespass was upheld.
Finally, the appellate court agreed that Lapcheske could not be convicted of grand theft for retaining the rent received from the tenant because, until challenged by the owner of record, he had an equal right to the owner to place a tenant in possession and to collect rent from the tenant.
One of the more common rent skimming schemes involve persons who take occupancy of real property vacated by the former owners after a foreclosure sale and the rent the property to unsuspecting tenants.
