If you own a home or other property in Tennessee, then you likely have two or three neighbors whose land borders yours. Many property owners are surprised to know that under a legal concept called adverse possession, a neighbor can actually lay claim to a portion of your land by using it for a certain period of time. If you want to make sure that all of your land remains yours – that is, that a neighbor can’t lay claim a portion after having encroached on it for a while – it’s definitely in your interest to learn about Tennessee’s laws on adverse possession.
And although less likely, it’s worth realizing that an unknown trespasser can essentially squat on your land and develop the same type of claim to legal ownership. There may also be times when you yourself need to assert an adverse possession claim, over land that you feel you’ve developed a right to use and want to continue using.
Several different types of adverse possession are covered under Tennesee law, each with its own requirements. This article gives an overview of adverse possession’s unique facets in Tennessee.
Adverse possession is a legal concept that allows a trespasser to gain legal title over the land of a property owner. The concept developed in early Britain, partly to justify the actions of pillaging armies and their leaders. More recently, however, the law’s function is 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 create hardship.
Because adverse possession law was initially developed by state courts, it differs slightly from one state to the next. In Tennessee, the burden of proof to establish a claim of adverse possession is on the trespasser; while the legal holder of title is the presumed owner until the adverse possessor can meet that burden. To put this differently: it is the trespasser’s job to prove that the judge should give him or her ownership of the land in question.
Like in most states, adverse possession in Tennessee can be proven based on the character of a trespasser’s possession and the length of time he or she possesses the land. A trespasser’s possession must be:
For example, imagine that Bill and Jean live next to one another in Nashville. There is no dividing fence or boundary between their yards. Bill builds a shed that is actually on Jean’s side of the property, covering about ten square feet of earth. Jean doesn’t say anything. Bill uses the shed as if it were on his own land. He does this for 20 years. Under the rubric described above, Bill can probably establish that he “owns” the land on which he was encroaching. From Jean’s perspective, she could have stopped Bill by demanding over those 20 years that he remove his shed or sign a rental agreement. But Tennessee courts will not allow her to suddenly eject Bill after sitting on her rights for two decades.
In Tennessee, there is a second way that a trespasser can gain adverse possession over someone's property. “Color of title” is a legal phrase meaning that there is a legally filed document that gives the appearance of actual legal title, but that this document is not legally valid.
For example, imagine that the deed to your property indicated that you owned a particular lake, but that your deed, for whatever reason, is incorrect; that lake actually belongs to your neighbor. If such a faulty document is recorded in the county register’s office for a full seven years or more without objection, then it becomes valid. (See Tenn. Code Ann. § 28-2-101).
A person can also establish this type of presumptive ownership under color of title after having paid the taxes on a piece of property for 20 years or more without the original owner, or the government, objecting. (See Tenn. Code Ann. § 28-2-109.)
Both situations – a faulty deed or mistaken taxes – involve some sort of incorrect paperwork filed with the government. Either an improper deed or tax filing, if gone uncorrected or unquestioned for seven or 20 years, respectively, can result in permanent change of legal title.
Color of title is a relatively uncommon situation. Most adverse possession claims involve the traditional requirements of actual, exclusive, open, continuous, and hostile possession for 20 years, described above.
Remember, the trespasser will have the job of demonstrating each and every one of the elements of adverse possession in court, which is where adverse possession claims are adjudicated. Preparing evidence that one has satisfied all the elements can be a challenge. For example, if the property owner has given permission to the trespasser to use the land, or if the trespasser’s occupancy of the land was broken up for even a short time by another trespasser or by the owner him- or herself, the adverse possession claim will likely fail.