Who Can Claim Property Based on Adverse Possession in Georgia?

As a homeowner in the Peach State, your property is likely a valuable asset, which you hope will increase in worth with each passing year. Protecting your investment is crucial. But a legal principle known as "adverse possession" can allow neighbors or trespassers to acquire bits of your land if you fail to object within a certain period of time. To make sure all of your land remains yours, it makes sense to keep an eye on your property lines.

By the same token, you yourself might eventually want to assert a claim for adverse possession against another individual's land, if you've been using it for a number of years.

Either way, you'll need to learn about Georgia's adverse possession laws.

Origin of Adverse Possession Laws

Adverse possession is a legal concept that allows a trespasser or squatter—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 that person leave would seem unfair, or create hardship.

Adverse possession should not be confused with having an easement to use another person's property—for example, when neighbors have an easement to use your driveway to access their 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.

Georgia's Requirements for Adverse Possession

Adverse possession in Georgia (also called "prescriptive title") is regulated by statute (Georgia Code § 44-5-161 et. seq.), as well as by the state courts. Key factors include the nature of a trespasser's possession and the length of time the person possesses the land. The trespasser's possession must be:

• public
• continuous
• exclusive
• uninterrupted for the statutory period (20 years, or 7 if the trespasser had "color of title")
• peaceable, and
• accompanied by a claim of right (an implied assertion of dominion, that is, that the property is theirs; particularly where such assertion "is made by the erection of valuable improvements." See Childs v. Sammons, 534 S.E.2d 409 (2000)).

The statute adds that, as evidence to support actual possession for purposes of a claim, trespassers should be prepared to show that they enclosed, cultivated, or used and occupied the lands in question, in a way that's "so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another." (See Ga. Code § 44-5-14.)

Georgia courts also prefer claimants who acted in "good faith," either because they made a mistake about ownership or because they at least weren't using fraud. (See, for example, Kelley v. Randolph, 295 Ga. 721, 763 S.E.2d 858 (2014).)

Trespasser Has the Job of Convincing the Court

Among the many hurdles to clear before someone can claim a piece of Georgia land using this theory 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 transfer ownership of all or a portion of it.

Georgia Will Grant Adverse Possession After 20 Years or Seven Years Under Color of Title

Although the normal adverse possession period in Georgia is 20 years (Ga. Code § 44-5-14), there's an exception. Under § 44-5-164, 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 the occupation—for example, a faulty deed or tax payment records. These types of documents also tend to support an inference that the trespasser acted in good faith and thus should be awarded possession. Of course, a fake or fraudulent attempt to create title documents will not work for this purpose.

Cutting Off an Adverse Possession Claim With Action to Quiet Title

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 they remove all structures from, and refrain from entering onto, your property. If it's an innocent mistake, they are likely to comply.

If the trespass continues, you might 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.

No Adverse Possession Claims Possible Against Government Land

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.