As a homeowner in the Peach State, your property is likely your most valued asset. Unlike a car or other pieces of personal property, your home is an investment, theoretically gaining in value with each passing year after your purchase. Given that, protecting your investment is crucial. Adverse possession can allow your neighbors or trespassers to acquire little to bits and pieces of your land if you fail to object within a certain period of time.
To make sure that all of your land remains yours, it makes sense to keep an eye on your property lines. Moreover, you yourself may eventually want to assert a claim for adverse possession against another individual’s land. Either way, you’ll need to learn about Georgia’s adverse possession laws.
Adverse possession is a legal concept that allows a trespasser—sometimes a stranger but more often a neighbor—to gain legal title over someone else's land. The concept first developed in early Britain. It has been kept alive in order to achieve a fair result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for so long that to make him or her leave would seem unfair, or create hardship.
Adverse possession in Georgia is regulated by statute, but also by the state courts. Of course, there are some hurdles to clear before someone can claim a piece of your Georgia land using this theory. One major hurdle is that the burden of proof to establish a claim of adverse possession is on the trespasser. In other words, if you hold legal title to a piece of land, you are its presumed owner until and unless the adverse possessor can come up with enough compelling evidence and arguments to convince a judge to give him or her ownership over all or a portion of it.
Adverse possession should not be confused with having an easement to use another person's property—for example, when a neighbor has an easement to use your driveway to access his or her property. Easements involve shared rights with others in pieces of property, whereas adverse possession results in a shift in title, and the corresponding right to exclude others from the property. Read more about easements.
There is no single statute in Georgia that dictates the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors over many decades of issuing decisions in individual cases.
As in most states, adverse possession in Georgia is established from the nature of a trespasser’s possession and the length of time the person possesses the land.
A trespasser’s possession must be (i) hostile (against the right of the true owner and without permission); (ii) actual (exercising control over the property); (iii) exclusive (in the possession of the trespasser alone); (iv) open and notorious (using the property as the real owner would, without hiding his or her occupancy); and (v) continuous for the statutory period (which is usually 20 years in Georgia, under Ga. Code Ann. § 44-5-14).
In addition to these factors, Georgia courts have also repeated certain pieces of evidence that are likely to weigh in favor of granting a trespasser adverse possession. These include: 1) the trespasser having supposedly purchased the land, in good faith; 2) the trespasser having paid taxes on the property; 3) the trespasser having made repeated attempts to exclude others from the land, and 4) the trespasser holding a deed that includes the disputed land.
As you can see, these mainly address situations where there was confusion over ownership rather than an outright attempt to take over another person's land.
These concepts are easier to understand with a hypothetical. Imagine that Marcelo and Fred live next to one another in a suburb outside of Atlanta. Without a wall between their properties, Marcelo begins to put lawn furniture on what is technically Fred’s land. Eventually, Marcelo builds an entire patio there. Fred never says anything. The years pass—20 years, in fact. Under Georgia’s adverse possession framework, Marcelo will likely be successful in establishing an ownership claim to that portion of Fred’s property. Note that he won’t be able to take over all of Fred’s lawn—only the portion upon which he constructed the patio and which he actively used for those two decades. Georgia courts would be reluctant to suddenly eject Marcelo and his patio after so much time has passed.
Generally, Ga. Code Ann. § 44-5-14 dictates that the possessor must have exclusive possession for 20 years. However, there is an exception to this. Under Ga. Code Ann. § 44-4-7, Georgia will grant title where a “trespasser” has occupied land under “color of title.”
Color of title is just a legal way of saying that an individual has some sort of legal documentation to support his occupation—for example, a faulty deed, or tax payment records. These types of documents tend to support an inference that the trespasser acted in good faith, and should be awarded possession.
What should you do if you spot a trespasser or a neighbor encroaching on your Georgia land? Your first move, of course, is to speak with the person and ask that he or she remove all structures from, and refrain from entering onto, your property. If it’s an innocent mistake, the person is likely to comply.
If the trespass continues, you may want to consult a lawyer and bring an action to quiet title. This is a legal method for determining the rightful owner of land.
In an action to quiet title, you’re asking a Georgia state court judge to issue an order declaring that you, and not the trespasser, are the true owner (and title holder) of the land. This order is particularly helpful if you are seeking to sell your property, and need to reassure potential buyers.
Any property that is held by Georgia’s state and local government entities is typically immune from adverse possession actions. So, if you live next to an unused state park in Bowdon, you won’t be able to “annex” a larger yard by building a shed and waiting two decades. Georgia’s government always has first priority when it comes to ownership.