Adverse possession is a legal concept that allows someone who is not the legal owner of a piece of land to gain ownership rights to that land through continuous, open, and exclusive possession of the land for a specific period of time.
For actual landowners, the idea that someone else could eventually gain ownership of their land simply by occupying it can be unsettling and even unfair.
This article will discuss the element necessary to gain title to someone else’s land in Georgia by adverse possession and, more importantly, how to prevent this from happening to your land.
Adverse Possession Law in Georgia
There are two methods to establish title by adverse possession in Georgia:
1. With Color of Title – Georgia Code § 44-5-164.
2. Without Color of Title – Georgia Code § 44-5-14.
“Color of Title” refers to a legal term that describes a situation where a person possesses a property based on a deed or other written instrument, such as a contract, judgment, or survey, that appears to give them valid ownership rights, even though there might be a defect in the title.
Color of title has been defined in Georgia “to be a writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or from the defective conveyance that is used — a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law.” (See Beverly v. Burke, 9 Ga. 440, 444).
“Without color of title” refers to a situation in which a person possesses a property without having a valid or legitimate claim of ownership based on any written document or legal instrument. In other words, they do not have a deed, contract, or other documentation that reasonably supports their right to own or occupy the property.
Adverse Possession with “Color of Title” (Ga. Code § 44-5-161) In Georgia
Claims for adverse possession are controlled by statute in Georgia. For a person with “color of title” to establish adverse possession, the person must show their possession of the land meets the following requirements.
1. Possession of the land must be in the right of the possessor and not of another
This means that the person claiming ownership through adverse possession must genuinely believe they have the legal right to the property.
2. The possession of the land must not have originated in fraud
Adverse possession cannot be based on a fraudulent or deceitful act in Georgia.
3. The possession of the land must be public, continuous, exclusive, uninterrupted, and peaceable
For possession to lead to a title by adverse possession, the occupation of the property must meet several conditions:
- Public: The possession must be observable and known to others.
- Continuous: The possession of the land must be ongoing without significant breaks.
- Exclusive: The possessor must have sole control and use of the property.
- Uninterrupted: The occupation should not be stopped or interrupted.
- Peaceable: The possession should not involve conflicts or disputes that undermine the peaceful nature of the possession of the land.
4. A claim of right must accompany the possession of the land
The person occupying the property must assert that they have a legitimate claim to the property. This claim of ownership reinforces their belief that they are the rightful owner.
5. Permissive possession of the land cannot lead to title by adverse possession
This means that possession of the property with the owner’s permission (permissive possession) cannot lead to adverse possession.
Instead, for adverse possession to occur, the person occupying the property without the owner’s permission needs to make an adverse claim of ownership and give notice to the actual owner about their intent to claim the property as their own.
6. Possession of the land for seven years
The person claiming title by adverse possession must be in continuous possession of the land for a minimum of seven years. (See Ga. Code § 44-5-161(a))
The adverse possession statute further adds there should be evidence that the person claiming ownership by adverse possession enclosed, cultivated, or used and occupied the land in a way that’s “so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another.” (See Ga. Code § 44-5-165).
Adverse Possession Without Color of Title (Ga. Code § 44-5-163) In Georgia
For a person without color of title to establish adverse possession, the person must show their possession of the land meets the following requirements.
1. Possession of the land must be in the right of the possessor and not of another: This means that the person claiming ownership through adverse possession must genuinely believe they have the legal right to the property and are not simply occupying it on someone else’s behalf.
2. The possession of the land must not have originated in fraud: Adverse possession cannot be based on a fraudulent or deceitful act.
3. The possession of the land must be public, continuous, exclusive, uninterrupted, and peaceable: For possession to lead to a title by adverse possession, the occupation of the property must meet several conditions:
- Public: The possession must be observable and known to others.
- Continuous: The occupation must be ongoing without significant breaks.
- Exclusive: The possessor must have sole control and use of the property.
- Uninterrupted: The occupation should not be stopped or interrupted.
- Peaceable: The possession should not involve conflicts or disputes that undermine the peaceful nature of the occupation.
4. A claim of right must accompany the possession of the land: The person occupying the property must assert that they have a legitimate claim to the property. This claim of ownership reinforces their belief that they are the rightful owner.
5. Permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party: This means that possession of the property with the owner’s permission (permissive possession) cannot lead to adverse possession and the establishment of prescriptive title.
Instead, for adverse possession to occur, the person occupying the property without the owner’s permission needs to make an adverse claim of ownership and give notice to the actual owner about their intent to claim the property as their own.
6. Possession of the land for twenty years: The person claiming title by adverse possession must be in continuous possession of the land for at least twenty years. (See Ga. Code § 44-5-163).
Strategies to Safeguard Your Property Against Adverse Possession
Avoiding adverse possession of your property involves taking proactive measures to protect your ownership rights and prevent others from acquiring legal ownership through continuous and open use.
Here are some strategies to consider:
- Regular Property Inspections: Regularly inspect your property to ensure no one uses it without your permission. This will help you identify any potential adverse possession claims early on.
- Clear Boundaries: Mark the boundaries of your property with fences, walls, or other visible markers. This can help prevent encroachments and clarify where your property lines lie.
- Communication: If you become aware of someone using your property, communicate with them in writing to assert your ownership rights and ask them to stop. This establishes a record of your efforts to prevent adverse possession.
- Property Tax Payments: Continuously pay property taxes on time. Failure to pay property taxes can weaken your claim to the property and make it easier for someone else to claim adverse possession.
- No Permission: Do not grant permission for others to use your property in a way that might be construed as allowing them to gain ownership. Any permissive use can weaken your defense against an adverse possession claim.
- Document Everything: Keep records of property surveys, deeds, property tax payments, and any communication with individuals using your property without permission. These records can be crucial evidence if a dispute arises.
- Lease Agreements: If you allow someone to use your property temporarily, create a written lease agreement that explicitly states their lack of ownership rights and specifies the duration of use.
- Regular Use: Continue using your property regularly. Regular, consistent use helps demonstrate your active ownership and can undermine any adverse possession claims.
- Legal Action: If you become aware of a potential adverse possession claim, consult a real estate attorney to discuss your options. Taking legal action early on can help protect your ownership rights.
- Post Warning Signs: If applicable, post signs indicating your property ownership. While not foolproof, this can discourage individuals from attempting adverse possession.
- Negotiation: If you discover someone is using your property without permission, consider negotiating an agreement that reaffirms your ownership while allowing them to use the property under certain conditions.
- Land Use Agreements: If you know someone using your property, you can create a land use agreement outlining their use while reaffirming your ownership. This agreement can help prevent adverse possession claims.
Conclusion
I strongly recommend seeking legal advice from an experienced real estate attorney in Georgia if you have any concerns related to adverse possession. An attorney’s expertise will clarify local laws, the feasibility of your claim, and the potential risks involved.