adverse possession

In Georgia, it is possible to lose your land, or a portion of it, to someone else. Based on the circumstances, someone else can actually take your land, and it may not be illegal. The law of adverse possession is one of the harshest and seemingly most unfair doctrines that can apply to property owners. However, as a property owner, you have the legal obligation to speak up for yourself or else risk losing your property.

It is called adverse possession because someone can come to possess your land without your permission. While you may not think that the law would condone possession without permission, that is exactly what adverse possession does. The person who adversely possesses the land does not just get the right to use it—they could own it altogether.

The Adverse Possession Doctrine Is One of Efficiency

The law of adverse possession relies on the principle that land is best owned by someone who will make use of it. The law believes that an owner should actively use and develop their land as opposed to inactively owning it. This is one instance in which the law is not concerned about what is morally right or wrong. Instead, it aims to protect squatters’ rights and those who have actually possessed and used the land, as unfair as the result may seem. With adverse possession, the law values efficiency over fairness. Adverse possession is a doctrine at common law, and similar laws exist on the books of many states.

When the Law of Adverse Possession Can Apply

Adverse possession can happen in a number of circumstances. Hostile use of your land can both change the ownership of it and give someone else a permanent right to use it. Adverse possession is related to the concept of a prescriptive easement, where someone gains the right to use the land because they have been doing it without opposition for a long period of time.

Examples of things that may be considered adverse possession or prescriptive use of the land can include:

  • Your neighbor builds a fence that encroaches on your land by several feet
  • Someone uses your land for their own purposes
  • Someone continuously drives over a private road located on your property
  • Someone builds a hunting stand or fishing shack on your property

The Required Legal Elements of Adverse Possession in Georgia

Adverse possession is not as simple as someone merely planting themselves or their property on your property and claiming it as their own. There are a number of elements that must be met before the concept of adverse possession can apply, including:

  • Hostile – The other person is using your land either against your wishes or without your permission
  • Actual possession – The possessor is using the land as an actual owner would, taking efforts to maintain and develop it
  • Open and Notorious – The possessor makes no effort to hide their use of your land
  • Continuous – The use of the land continues uninterrupted for the entire statutory period

Another element that is often added to the test is whether the possessor has exclusive use of the land.

Possession Depends on the Facts of the Case

One does not actually possess lands simply by virtue of being on it. In lawsuits concerning one party’s adverse possession of another party’s land, courts would generally look for two elements that are necessary to constitute possession:

  • The possessor has a physical relationship to the land that would give them control over it.
  • The possessor must take action to exclude others from the land.

In one of the examples above, where a neighbor builds a fence that encroaches onto their neighbor’s property, the action of building the fence would be an intent to keep others off the land. In this case, the neighbor has a good faith belief that they are the owner of the property, perhaps because they are relying on a faulty property survey.

The Required Periods for Adverse Possession in Georgia

In Georgia, the adverse possession of land must last for a certain amount of time to transfer ownership. One key term to be aware of is “color of title.” This means that a person appears to have title to the property, but they do not actually have it, and it works as follows:

  • If one adversely possesses land under the color of title for a continuous period of seven years, they can take ownership of it.
  • If one adversely possesses land without any valid basis for believing that they are the owner, the statutory period is 20 years until the land changes ownership.

Note that the color of title does not include fraud. If someone takes action to defraud you of your property, they are not protected by the law of adverse possession. However, these laws do apply when someone acts as if they are the owner of the property without taking the actual title from you.

Legal Actions After Adverse Possession

There are a number of ways that an adverse possession dispute can lead to litigation. Oftentimes, there will be a real estate transaction involving the land. The prospective owner may review a survey and realize that there is someone improperly on the land. At that point, the current owner could file an action in court for ejectment or to quiet title; however, there comes a point in time when it may be too late to remove someone from the land.

If you are trying to sell your land in the future, and there is a cloud on the title, you would need to file an action to quiet title. Otherwise, a title insurer would not write a policy on the land.

One common adverse possession-related lawsuit arises when the possessor files a claim asking the court to issue a declaratory judgment that they are the true owner of the land. Another way that an adverse possession case could reach court is when an owner tries to file an action for ejectment, seeking to have a trespasser removed from the land. In these cases, the court will look to the history of the possession of the land and whether and how the possessor used it.

The Burden of Proof in an Adverse Possession Claim

The person who is claiming ownership of the land by adverse possession has the burden of proof. It may not be easy to prove continuous, open, and obvious use for a lengthy period of time. They may need to use pictures that date back for years or testimony from people who have seen their use of the land. This burden is not necessarily an easy one to carry.

If the possessor is able to carry their burden of proof, then the burden would shift back to the property owner to show that the use was not actually adverse. They may need to prove that they gave the possessor permission to use the land. Alternatively, they could show that they tried to take some action to reclaim the land for themselves.

How to Prevent an Adverse Possession Claim

As the owner of land, you have a legal obligation to take action to prevent yourself from losing your property. A key downfall for property owners when it comes to adverse possession is that many do not do anything to speak up against the hostile use of their land. If you learn that someone is using your land, you must do something to try to stop them during the statutory period. For example, you could send a letter to the possessor to let them know that they do not have permission to use your land. It is always better to put this notice in writing so you can prove that it happened. In addition, putting a “no trespassing” sign on your land may be enough to assert your ownership and show that you did not give permission for the usage.

Regardless, you should try to remain calm and avoid escalating the situation. Your neighbor may simply be encroaching on your land as a misunderstanding. However, you cannot ignore a trespass because it could have harsh consequences.

If your neighbor will not listen to you, or they believe they are correct, you should contact an experienced property attorney to help you handle the situation. Your ownership and the integrity of your property can be at stake. A Georgia real estate attorney can give you advice about the best way to deal with the situation, including whether it is necessary to go to court. In these cases, it is better to be safe than sorry.

Contact an Atlanta Property Disputes Attorney Today

The Law Offices of Mark Weinstein P.C. works with people who believe they have a right to, or an interest in, land. We handle complex property disputes, providing common sense and practical legal advice to our clients. We understand that legal disputes involving real estate can be among the most emotional and hard-fought because ownership of private property is at stake.

To schedule an appointment to speak to one of our attorneys, you can send us a message online or call us at (770) 888-7707.