Understanding Adverse Possession Laws in Georgia: A Deep Dive

What is Adverse Possession?

At the core, the doctrine of adverse possession in Georgia comes down to the idea that, under the right circumstances, you can acquire title to real estate, even if the real estate is not being offered for sale. How does it work? As I’ve explained, the legal maxim regarding real estate is "that at law, where there’s a right there’s a remedy; and where there is a remedy there is a right". The legal term we have for this is "remedy". In short, it’s a way to seek adjudication by law, i.e. a remedy, for a right that you have to property. This "right to property", as defined by the Georgia Supreme Court, is the "active and continued exclusive possession of land, claimed under the standard of right adverse to another who has the legal title in the record." In more practical terms, it is the periodic use, occupancy, having-holding, or disposition of a piece of real estate under color of title. Notice how I said using the property "under color of title". Now, I know that sounds new and foreign, but it’s not. Color of title just means that, when someone who has a title to real estate transfers that title to someone else, the new owner has "color" of the title. The idea, then, is that a current deed on the title record makes the claim to the land "colorable" . Therefore, adverse possession is "claiming" the land "as of right" per the current record while, at the same time, knowing that there are irregularities on the title record that are adverse to the current ownership.
I know what you’re thinking, "Gee thanks for that super confusing explanation. Now I fully understand how we acquired my 2 bedroom condo in Buckhead by adverse possession." That’s a joke but you should know this now: there must be a defect in the title record to even gain adverse possession. If you already own a piece of property, that alone does not support an adverse possession claim. On the contrary, there must be a defect in the title record that, when discovered, would allow for the prima facie case for an adverse possession claim. A common defect used by adverse possession owners is color of title due to a gap in the title record. The short period for this gap, as mentioned, is seven years. Adverse possessors must show that they entered into possession of the real estate via a deed showing up on the title record and, within seven years, the adverse possessor had acted thereunder (assuming the deed is valid). Furthermore, the adverse possessor must be in continuous occupancy for the full seven years.

Legal Aspects of Adverse Possession in Georgia

Georgia has codified four statutory methods by which adverse possession can occur: (1) prescription; (2) title by implied consent; (3) title by estoppel; and (4) state conveyance that has not been followed by entry and possession. OCGA § 44-5-161. Each of these methods requires possession to have been held long enough to reach the statute of limitations for recovery of the land basis on tacking title.
The longer adverse possession law and, consequently, the most difficult way to adversely possess property is through prescription. Prescription bars actions to recover property that is "used continuously and uninterruptedly for 20 years or longer." OCGA § 44-5-164. The "use" must be continuous and uninterrupted, but need not be exclusive and need not be peaceable. The prescriptive period of twenty years is based on the running of a period of twenty years against the rightful owner and runs as long as the land is used.
The second statutory method is title by implied consent. To recover property by similar to title by prescription, possession for twenty years is required. However, the key difference is that the title of the true owner to recover against land possessed by others for twenty years is extinguished only if "no difference in the quality or character of the title has arisen." OCGA § 44-5-166. Thus, title by implied consent does not require the same degree as the other three methods; continuity and exclusivity of possession without a gap, for example, need not be proven. OCGA § 44-5-169.
Next is title by estoppel. Title by estoppel is used when a person who has purchased land from a person who has no title conveys his or her interest to another person. Once the disconnected grantee attempts to convey the land, he or she is estopped or barred from denying the title of the original grantor. OCGA § 44-5-171. Title by estoppel vests full and unconditional ownership of the land in the new grantee.
Finally, state conveyance that has not been followed by entry and possession is the final way to recover land through adverse possession. OCGA § 44-5-184. Disconnected state conveyance, which is an expression of negotiation to convey land from the state, is insufficient to give title to the land and necessitates actual entry and possession within four years from the date of the conveyance.

How to Execute an Adverse Possession Claim

There is not a general lawsuit form that is provided by the Georgia court system for bringing a lawsuit under the doctrine of adverse possession. There simply must be a lawsuit filed in the appropriate court seeking the appropriate legal relief. In a quiet title action to quiet title to land by adverse possession, the plaintiff must provide notice to the Defendant and to any parties on record with the Superior Court Clerk’s office claiming an interest in the property. A Sheriff’s Deputy must personally serve the Complaint on the Defendant or Defendants. If you are suing a corporation, you can serve the registered agent for the corporation. If the Defendant lives out of state and service cannot be made, there is a procedure to serve the Secretary of State.
Once the Defendant files an Answer, a Pre-Judgement Order must be filed by the plaintiff and then a title hearing is held before the Probate Court Judge (real estate title adjudication or rights to adverse possession) or a jury trial is held.

The History of Adverse Possession in Georgia

The concept of adverse possession can be traced back to both Roman civil law and English common law systems, where it has long served as a means to resolve land disputes and to promote the productive use of land. In the United States, the doctrine migrated with English settlers and settled into American law as a means of promoting ownership of unimproved land.
In Georgia, easements and rights-of-way by prescription have existed since the state adopted the common law in 1790. Adverse possession of land, however, did not become part of Georgia law until 1821. This early modern iteration required that a claimant have exclusive, uninterrupted and continuous, open and visible, and peaceable possession under a claim of title for seven years. These elements were similar to what remains the case today, although the context in which they arose and modern statutes have made this cause of action more cumbersome to overcome.
The U.S. federal government contributed to this body of law during the latter half of the 1800s, when statutes imposed certain conditions on land grants, transfers, and claims to encourage development in the West. By the mid-1900s, the U.S. Supreme Court and Uniform Law Conference of Canada adopted a similar standard for adverse possession in regard to "registered land," or land that had been registered under a system administered by a land registration and examination system.
In 1879, the Georgia Assembly passed a statute that would have required the elements for adverse possession to be proven by clear and convincing evidence. However, the Court in 1887 held that the claimed standard was vague, but that the bar had been raised and therefore replaced the clear-and-convincing requirement of the previous statute with the more precise standard for proving adverse possession (with the passage of sections 136 and 137 of PR Code).
The original Georgia statute has been amended to reduce the time period for adverse possession from seven years to four years (1946), to reduce the time period from seven years to five years (1969), and to abolish the clear-and-convincing standard for evidentiary proof of the elements of adverse possession, replacing it with the more precise standard provided in what is now section 44-5-166 (1982).
The period for claiming prescription of easements and rights-of-way has been halved to four years, but the elements are the same as the common-law predecessors (1946). Adverse possession claims must now include, in addition, the further requirements that the claimant be in actual possession of the property in question, have paid all taxes assessed against the true owner or have never paid taxes, and the land in question must be unimproved for 20 years. The current adverse possession laws also require the claimant to provide actual notice to the true owner prior to committing the first overt act of possession, but this requirement was recently changed by the Georgia legislature for adverse prescriptions that have not attached before November 3, 2018.

Landmark Cases and Precedents for Adverse Possession

In 2016, the Georgia Court of Appeals in Tyson v. Ricketts cited from the most recent edition of the CJS and otherwise discussed Georgia’s adverse possession law. The interesting portion of the opinion dealt with the adverse possession claim by plaintiffs to land that had been distributed to the United States Government for military use during World War II. After the war, the land was turned back over to the State of Georgia. Georgia held the land for 40 years before selling it to a private party. The private party assumed all of the rights to the land of the State of Georgia. It seems clear that the State of Georgia should be viewed as having been in control of the land throughout the time of its ownership and plaintiffs had to show by clear evidence that they had possessed the land in accordance with the law of Georgia.
In Chatham County Tax Commissioner v. Kubiak, decided February 17, 2015, the Court of Appeals of Georgia put down a marker in the case law involving the auctioning of property in tax sales within the meaning of the law of Georgia. Basically, the State of Georgia thought it had revised the law governing the disposal of property after a state tax sale and the when those properties were auctioned off, the state took its 20% tax and auctioned the property for whatever the buyer was willing to pay. The State assumed that any person could purchase the property and lift the restrictions from the property subject to the satisfaction of the 20% tax owed by the property owner . In one case, the State auctioned a property (after filing a suit to quiet title and obtaining judgment quieting title). The property was sold in three pieces. Thereafter, someone located the original grant of the property which stated that all of the property was subject to the restrictive covenants. The covenant promised that if the property was sold to the county to satisfy unpaid taxes, the property would revert to the prior owner. The owners of this property claim that the original deed restored the restrictive clear to the property after the sale to the county and the subsequent auction.
In 2015, to comply with a Federal Law, the Georgia General Assembly modified Georgia’s homestead exemption homestead exemption for persons age 65 or older. The amended homestead exemption effectively exempted from taxation any increase in the value of the homestead.
In May of 2013, the Georgia Supreme Court issued its opinion in Franklin v. PNC Bank, N.A.. The Franklin case involved the sale of a property within the meaning of the law of Georgia. The facts here are very interesting. A single parcel of real estate is sold at an auction at an annual tax sale. The auction is held to satisfy unpaid property taxes owed by the owner of the property. The buyer at the auction pays the purchase price and the amount of the unpaid ad valorem taxes owed by the owner.

Common Issues and Risks in Adverse Possession Claims

While the claims of adverse possession pursuant to O.C.G.A. § 44-5-161 through -162 seem unassailable on their face, issues that deny the full force of these statutes do frequently arise. When these issues arise, the litigants (always or mostly lawyers) are forced to resolve them by means of a jury trial. The one or two or three year time frame between the filing of a lawsuit seeking to establish title by adverse possession and the date of jury trial allows for great legal expenses to accumulate on both sides. As a result, the attorneys can discuss at length with clients the various problems that are presented in any particular case in the process of preparing for trial and get paid on an hourly basis for their time and then at the end use the jury trial to resolve the issues. But this process will result in to lawyers each getting $50,000 to $100,000 based on an average hourly rate of $200 per hour for 250 to 500 hours of attorney time. It may be the most expensive form of litigation known to man. One issue which always arises concerns whether or not there was a continuous claim of adverse possession for seven years or longer. Problems with this issue arise when the adverse possessor is living on a hardware barge or in a camping trailer in the summer. A very common situation in Georgia is for the adverse possessor to actually own a home and the land that it sits upon but use the vacant adjoining land for hunting and fishing and build a shed or lean to shelter to store tools and equipment. The law in Georgia which requires such adverse possession to be both open and notorious would seem to require that the adverse possessor store the tools and equipment in plain view and make sure that adjacent owners see what he is doing to lay claim on their property. The law, however, is that "In order to show a continuous possession, it is not essential that the tenant-in-common use the property continuously for any fixed period in each year. It is sufficient if he uses it during the entire year in such manner as to indicate his intention to hold it exclusively as his own." Smith v. MacDougal, 50 Ga. 420, 422 (1873). The intent to hold the land exclusively, not the strict requirement of exclusive use, is what really controls for purposes of adverse possession claims. Sloppiness in marking the metes and bounds of the alleged claim is another common issue. See Dorsey v. Williams, 261 Ga. 592, 608, 409 S.E.2d 645, 652 (1991). This issue arises because most of the property in Georgia is surveyed on the basis of a section corner grid of one-mile by one-mile layout. Many people who obtain title to the property abutting the claimed property simply assume that the alleged property line is the same as the old one claimed by the seller. The most famous example of such a mistake was the Laurel and Hardy Oil Well Case where they lost a fortune in oil when they fell into a hole they had dug believing the property line was the one they were in fact trespassing on. See Lewis, Have You Got a Stolen Piece of Kentucky Blue Grass, 9 Ga. L. Rev. 862 (1975). Or someone sells a 27 acre tract of land that has been in the family for over a century and never scientifically surveyed but who knows has a great view of the creek. The seller and buyer agree to some arbitrary and capricious claimed boundary line, e.g., the fence or the corner of the chicken house or the back of the barn, and then someone finds out 50 years later that the property was in fact 40 acres which has been mistakenly reported as being only 27 acres for all those years, and thus the property was stolen from the 13 acres of neighbors. In all of the above situations, no doubt there has been adverse use for years, but the troubles in trying to establish the proper right to possession keep arising, and they are perhaps endless.

Counterarguments Against Adverse Possession

As previously noted, in a case tried under the evidence of continuous possession, the burden is upon the one claiming the prescriptive title, not upon the owner or his grantee who has succeeded to his title. Copeland v. Jones, 206 Ga. 693 (1) (58 S.E.2d 436) (1949). The owner need only present the record title under which he or she holds and if that shows title in the owner, there can be no title by prescription, and the possessory claimant must prove an adverse possession by clear and convincing evidence. H. A. Sailors, Inc. v. Pennington, 192 Ga. App. 583 (385 S.E.2d 421) (1989), aff’d, H. A. Sailors, Inc. v. Pennington, 261 Ga. 430 (405 S.E.2d 30) (1991).
General Claimant Defense The owner of land may defend against the claim of prescriptive title by proving the character and amount of the use, and the nature of the holding, and then asserting that such use and holding constituted permissive use, temporary use, or was not exclusive or continuous. If the owner admits that the claimant has been in possession, the onus is on the owner to affirmatively show the use was permissive or temporary. First Nat. Bank of Marietta v. Waste Trackers, Inc., 218 Ga. App. 872, 875 (1) (463 S.E.2d 376) (1995). However, even if a claimant’s possession is proved to be permissive, temporary, or not exclusive or continuous, the claimant may attempt to show the true character of the possession. Mayfield Trucking Co. v. Hasty, 238 Ga. App. 453 (519 S.E.2d 313) (1999) (holding defendant had no right to judgment on the counterclaim requesting property because it was shown that the property was acquired when the ten-year period of adverseness had not expired). Moreover, any presumption against a claimant arising from a permissive use is rebuttable. Mayfield Trucking, supra.
Exclusive Possession Probationary and permissive occupancy does not rise to exclusive possession even though the occupant may act with exclusive dominion, and the occupant’s acts or omissions is not the cause of the condition of the property. First Nat. Bank of Marietta v. Waste Trackers, Inc., supra, at 873 (2). Actual possession was not exclusive because defendants admitted that other individuals had exclusive use of the homes on either side of their home; they did not fence up the back yards, allowing passage onto their property through those areas; they did not enclose the driveway, allowing other vehicles to use it; and they held keys to their house, letting other family members use those. Id. In claiming rights by adverse possession, an occupant must occupy the property exclusively, so he can exclude others. Commissioner of Internal Revenue v. Smith, 709 F.2d 1458, 1464 (11th Cir.1983), citing Ga. Power Co. v. Harris, 182 Ga. 142 (184 S.E.2d 404) (1936); Harley Davidson Motor Co. v. Hill, 718 F.2d 734, 737 (11th Cir.) (1983); First Union Holdings. Ltd. Partnership v. United States, 947 F. Supp. 1474, 1479 (N.D. Ga. 1996), aff’d, 116 F.3d 424 (11th Cir. 1997). To show exclusivity in Georgia’s statutory law, evidence must show an open, visible, uninterrupted, contiguous, and peaceful possession of land under color of title, or, in the absence of color of title, a continuous, uninterrupted occupation of five years. First Nat. Bank of Marietta v. Waste Trackers, Inc., supra, at 872 (1).
Continuous Possession Continuous possession does not demand daily presence on the land, but merely requires the usual and ordinary use of the property of the sort to which it is adapted. Id., at 874(1). To satisfy the continuous requirement, the use must have been uninterrupted, except for the time reasonably required to make repairs and perform other necessary acts regarding preservation. Williams v. Walker, 173 Ga. App. 901 (328 S.E.2d 923) (1985). The continuity requirement does not necessitate the same continuous use. Michles & Booth v. Webb, 186 Ga. App. 897 (369 S.E.2d 507) (1988). Where different people occupy the property, all will be tacked together, so long as the privity between them is not removed by death or by acts that are adverse of one against the other. Williams v. Walker, supra.

Final Words

The complexities of adverse possession laws in Georgia illustrate the delicate balance the legal system strives to maintain between the rights of long-term occupants and rightful property owners. While these laws serve a purpose in promoting land productivity and ownership turnover, they can also lead to significant disputes and legal challenges.
In this article, we explored the fundamental elements required for an individual or entity to successfully claim adverse possession under Georgia law. The requisite "actual possession" and "hostility" between the possessor and the true owner underscores the tensions inherent in such claims, as they often result in protracted legal battles that can be detrimental to both parties. We also examined the specific requirements for adverse possession under color of title, which are more stringent than those for non-color of title claims, as well as the less common requirement for prior payment of property taxes in cases not involving color of title .
The article further highlighted the unique nuances of Georgia’s statutory period for adverse possession, which ranges from seven to twenty years depending on various legal conditions, including the payment of property taxes. This wide range reflects the balancing act that the law must achieve between protecting long-term occupants and ensuring that property rights are respected.
In conclusion, it’s crucial for both property owners and potential adverse possessors to be well-informed about their rights, obligations, and the specific limitations set forth by Georgia’s adverse possession laws. Failure to do so can result in a significant loss of property rights or a lengthy and expensive court battle to establish a claim. As with many complex legal issues, obtaining professional legal counsel is highly recommended for those facing potential adverse possession claims, whether as the affected property owner or as the claimant.