Russell v. Lescalet: Living in the House for Ten Years Did Not Erase a Co-Owner’s Share

A co-owner who has lived in the property for years and paid the taxes often believes the house is now theirs alone. In Russell v. Lescalet (1967) 248 Cal.App.2d 310, the Court of Appeal held that it is not. A husband who occupied a house with his family for ten years, and paid the taxes, did not take the other co-owner’s half by adverse possession, because nothing he did told the other owner that his possession had turned hostile.

The trial court had denied the plaintiff’s partition action and declared that she owned nothing. The Court of Appeal reversed.

Why Russell v. Lescalet Matters

1. Possession by one co-owner is not adverse to the others. Every co-owner has the right to occupy the whole property, so living there alone proves nothing.
2. Paying the taxes does not change that. The occupying co-owner paid the property taxes for a decade and still did not acquire the other half.
3. The family in the house stands in the co-owner’s shoes. A spouse and children living there are covered by the co-owner’s own right to possess. Their occupancy is not a separate, hostile possession.
4. A share bought from a creditor’s sale is a real share. The plaintiff traced her title to a sheriff’s sale of one spouse’s interest, and that was enough to make her a co-owner who could seek partition.

The Facts: A $191 Judgment and a Two-Bedroom House

In June 1953, a creditor obtained a $191.23 judgment against Gertrude Lescalet in the Los Angeles Municipal Court and recorded an abstract of it. That November, Gertrude and her husband, Raleigh, took title to a lot with a two-bedroom house as joint tenants.

In 1954, the sheriff levied on the property and sold Gertrude’s interest at an execution sale. The buyers received a sheriff’s deed in 1957. Gertrude’s former interest then passed through a series of quitclaim deeds, ending with Joyce Russell in June 1963. Through all of it, Raleigh and his family kept living in the house, and Raleigh paid the taxes. None of the other owners ever had possession.

Russell filed for partition by sale in October 1963. The Lescalets cross-complained to quiet title. The trial court ruled that Russell had no interest at all and that the Lescalets had acquired full title by adverse possession.

How the Court of Appeal Decided the Case

The Execution Sale Made the Buyers Tenants in Common

A creditor can levy on one joint tenant’s interest while the joint tenants are alive. When that interest is sold at an execution sale, the joint tenancy is severed, and the buyer and the remaining owner become tenants in common. From the 1957 sheriff’s deed forward, the house was owned by Raleigh and by whoever held Gertrude’s former half, ending with Russell.

Exclusive Possession Is Presumed Permissive

The court asked whether Raleigh’s possession was adverse to his co-owners and answered: “It was not.” It relied on the rule from Johns v. Scobie that the possession of one co-owner is deemed the possession of all, and that a co-owner’s exclusive occupancy is presumed to be by permission until the others have notice that it has become hostile. Between co-owners, the proof must be stronger than what a stranger would need. The court found no such proof:

“There was no evidence of any hostile disposition on the part of tenant Raleigh Lescalet toward his out of possession cotenant” that could support a finding of adverse possession.

The Spouse Living There Gained Nothing Either

Gertrude had lost her interest at the sheriff’s sale but never moved out. The court held that her presence did not win it back. Raleigh was entitled to possession as a co-owner, and he could extend that possession to his wife and children.

“Their possession was not an independent possession; it was embraced in his.”

Russell v. Lescalet (1967) 248 Cal.App.2d 310, 314

The Result

The judgment depended entirely on the finding of adverse possession. Because the evidence did not support that finding, the Court of Appeal reversed the judgment that had denied partition and quieted title in the Lescalets.

What Russell v. Lescalet Means for California Co-Owners

1. Staying away does not cost you your share. A co-owner who has never lived in the property, or has not been there in years, still owns their interest. The same result was reached in Wood v. Henley and Preciado v. Wilde.
2. “I paid the taxes” is a claim for money, not for title. Paying the property taxes does not give a co-owner ownership of the other share. A co-owner who paid more than their part can ask for reimbursement when the sale proceeds are divided.
3. Time alone does not bar partition. As Adams v. Hopkins holds, the statute of limitations does not run against partition between co-owners. Time matters only if a co-owner has actually lost title by adverse possession, which requires an ouster that is open and unmistakable. See Hacienda Ranch Homes v. Superior Court for what counts as ouster.
4. A co-owner in the house can be made to sell. When a co-owner refuses to sell and is living in the property, a partition by sale ends the standoff.

Co-Owner in the House Says It’s All Theirs Now?

Russell v. Lescalet shows that years of occupancy and tax payments do not turn a co-owner into the sole owner. If you are on title, you can ask the court to sell the property and pay you your share.

Talkov Law can help. With 12 full-time partition attorneys and experience in over 650 partition actions throughout California, our team handles every step, from the complaint through the referee’s sale and the final distribution of proceeds. Call (877) PARTITION (727-8484) today or contact us online to get started.