For most businesses in the state of Georgia, real estate can be the company’s largest asset and losing that property could jeopardize the business itself. Real estate is a huge investment, and keeping that investment safe is imperative. Business owners in Georgia therefore, must understand the legal principle of adverse possession to help protect against losing their property rights by failing to act promptly under such circumstances.

Adverse possession allows a trespasser to gain the legal title and ownership rights to another’s land. It’s an older legal concept derived from British common law to settle disputes when one property owner has entirely neglected or long forgotten about a piece of land while another person has been using or caring for it. If the person using or caring for the land has been there for so long or done so much work that forcing that person to leave would be unjust, adverse possession allows that person to claim the land legally.

In the state of Georgia, adverse possession is regulated by statute and by the state courts. If you hold the legal title to a piece of land, you are its presumed owner until and unless the adverse possessor can compile sufficient evidence to satisfy certain statutory requirements and convince a judge to turn over the ownership of the land or a portion of it.

WHAT ARE GEORGIA’S REQUIREMENTS FOR ADVERSE POSSESSION?

State law in Georgia (O.C.G.A. § 44-5-160) defines adverse possession (also known as “title by prescription”) as “the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by law,” – either 7 years or 20 years depending on the circumstances. Adverse possession in Georgia is not established only by the length of time a trespasser possesses land, but is also dependent the nature of the trespasser’s possession. Generally speaking, for an adverse possession claim to prevail in a Georgia court, a trespasser’s possession is required to be:

  • “hostile,” that is, against the right of the legal owner and without that owner’s permission
  • “actual,” that is, exercising full control over the property
  • “exclusive,” that is, the land is actually and exclusively possessed of the trespasser alone
  • “open and notorious,” that is, the trespasser has acted as the real owner would, not concealing ownership or occupancy
  • “continuous” for the statutory period, which is usually twenty years under the law in Georgia

Georgia courts also look for and consider specific evidence that may favor a trespasser’s adverse possession claim. That may include evidence that the trespasser has paid taxes on the property; evidence that the trespasser has repeatedly attempted to exclude others from the land; or a deed the trespasser holds that includes the disputed property. Frankly, while confusion over the ownership of a property isn’t unusual in Georgia, outright attempts to grab another person’s land through adverse possession are quite rare.

WHAT IS “COLOR OF TITLE” IN GEORGIA REAL ESTATE LAW?

Generally speaking, to win the rights to property through adverse possession, the law in Georgia requires the trespasser making the claim to have exclusive possession of the property for at least twenty years. However, there is an exception. Georgia may grant title after seven years when a trespasser has occupied land under “color of title,” which is merely a legal term for saying the trespasser has legal documentation to support his or her adverse possession claim (i.e. a faulty deed). Acting under “Color of Title” implies that a trespasser acted in good faith and should be awarded the property.  For example, where a trespasser obtains a deed in good faith from a purported seller lacking title to the property, while title would not otherwise pass to the purchaser by the conveyance alone, the purchaser may obtain title to the property by adverse possession under such “color of title” after seven years.

CAN A “QUIET” TITLE ACTION DEFEND AGAINST ADVERSE POSSESSION?

In the state of Georgia, if you see or believe that a neighbor or any other trespasser may be encroaching on land that you own, don’t overreact. The person has probably acted inadvertently or by mistake. Politely speaking with the person and asking him or her to remove any items or structures from your property, and to refrain from using your property in the future, is usually all it takes. Most people will quickly honor your request if they’ve made an honest mistake.  Ignoring the trespass, however, can be detrimental.

If a dispute over title to your property arises, whether involving a claim of adverse possession or otherwise, you may want to consult with an experienced Atlanta real estate lawyer at Hecht Walker and bring an action to “quiet title.” This is the legal method for conclusively determining and establishing the rightful owner of land.  In an action to quiet title, a property owner may ask a Georgia court to declare formally that the presumed legal owner and not the trespasser is the true legal owner and title holder of the land, quashing any question of adverse possession.

In 2011, for example, the commercial real estate attorneys at Hecht Walker represented the developer of a large tract of commercial/industrial property in South Fulton County. Our client purchased the property in 1995 and recorded a warranty deed setting forth the legal description of property boundaries.  In 1996, someone purchased property adjacent to the large tract. That purchaser’s deed was recorded with an incorrect boundary description, which overlapped with our client’s property. Our client did not discover the overlap until 2005 when attempting to refinance the bank loan.

In the meantime, the subsequent purchaser subdivided his property and sold lots to several other purchasers with the same erroneous legal description in those deeds. In 2011, when our client filed suit to Quiet Title to these clouds on title, the neighboring owners asserted title to the disputed property by adverse possession. Our client prevailed, even though the neighboring owners had deeds asserting ownership of the disputed property, because we presented evidence showing that the neighbors’ use and control of the property was neither “exclusive” nor “open and notorious.” There was also no evidence that the neighbors had made any improvements to the disputed property, which remained a densely wooded area.

In Georgia, two ways are available to “quiet a title.” A “conventional” quiet title action is rare, but it may be the right tool for cutting off an adverse possession claim where the dispute involves a specific adverse claim and/or erroneous deed.

A property owner’s other option is taking advantage of the Georgia Quiet Title Act of 1966, and quieting title as against the world. This action is often required by title insurers when there is a cloud on title so that when it’s time to sell, there is no doubt that a purchaser will receive what the law calls “good and marketable title.” A “quiet” title action against the world clears any and all disputes on a title and effectively guarantees that a title is free and clear.

If you need to take legal action regarding adverse possession, an experienced Atlanta commercial real estate lawyer at Hecht Walker (404-949-0170) will know which option is best for a particular property owner in a specific situation.