Copyright © 2004 by Ned Ferguson, R.L.S. This writing is the opinion of the author. Nothing herein constitutes legal advice. If you need legal advice, you are advised to seek out a competent attorney.
With the passage of time, property rights become vested in those who occupy the land. This is the whole premise behind adverse possession and prescriptive rights. Many people feel that adverse possession is a bad thing. Quite the contrary, the reason for adverse possession laws is to bring peace and tranquility to neighborhoods. Those who are in possession of the land for a long enough period of time acquire title by virtue of that possession.1 Property owners are thereby protected against title challenges arising from ancient and obscure claims.
The most important justification for the adverse possession doctrine is that it protects one who innocently and mistakenly possesses the land of another for such a long period that a justifiable reliance on the existing state of affairs can be presumed. A change in this state of affairs would give a windfall to the records owner…The Doctrine of adverse possession also promotes certainty in land titles, nullifies conveyance errors, and often settles boundary disputes. (Edward H. Rabin, et al, Fundamentals of Modern Property Law, Fourth Edition, 790, Foundation Press 2000).
Adverse possession is a combination of activity or conduct by the adverse possessor and the lack of activity or conduct by the rightful owner to defend his title. It is human nature to put things off and, as we become older, time seems to pass by at an ever faster rate. If one is being adversely possessed and is aware of it, it is absolutely critical to act immediately. Not to act is to state implicitly either that one is not aware of the extent of his ownership or does not consider his property to be of much value and is willing to give it up. The legal term for this is acquiescence; to accept or passively submit.
In Tennessee, the required duration of adverse possession to attain ownership is seven (7) years for someone claiming under color of title and twenty (20) years for someone without color of title. (Tennessee Code Annotated (T.C.A.) 28-2-101 onward.)
“Color of title” means there is a document giving the appearance of title, but which document is not legally valid. The document appearing to convey title in fee must be recorded in the register’s office for the full seven year term. (T.C.A. 28-2- 101(b))
Subordinate possession is not adverse. Possession subordinate to actual ownership does not apply (for example as tenant or lessee.) (T.C.A. 28-2-108)
If the adverse possessor pays state and county taxes on the land continuously for a period of 20 years or more before an objection arises, that person is presumed to be the legal owner (T.C.A. 28-2-109).
In rare situations, the time of possession may be “tacked on” or added together between owners. The second owner may continue an adverse possession that was begun by the first.
Government entities and some quasi-government entities (such as railroads) may not be adversely possessed.
In Tennessee, the burden of proof for establishing adverse possession is on the adverse possessor. Any presumption must be in favor of the legal holder of title.
Adverse possession is defined by two things:
1.) Length of time and
2.) Character of possession.
In general, adverse possession must be:
1) Hostile; the definition of hostile is the same as “adverse”. The possession must be hostile to and against the right of the true owner. This does not suggest a feeling of hate or malevolence towards the true owner. It is simply an indication that the possessor must defend the land as his own, against all claims.
2) Actual; the adverse possessor must exercise dominion over the property in some fashion. This may be by such acts as maintaining livestock, fencing, mowing, timber cutting, etc. His claim cannot be invisible.
3) Exclusive; the possession must be by the adverse possessor alone, to the exclusion of others.
4) Open and Notorious; the character of possession must be such that any reasonable, prudent, person would be aware that the adverse possessor is claiming the property as his own.
5) Continuous; the property in question must be under the continuous and uninterrupted possession of the adverse possessor for the entire statutory period (7 years with color of title, 20 years without).
There should also be an element of innocence involved on the part of the adverse possessor. The adverse possessor is not one intentionally and knowingly occupying the property of another in an attempt to wrest it from its rightful owner (squatting). Squatting and adverse possession are not the same thing. Though mistaken, the adverse possessor should firmly and innocently be convinced of his rightful ownership. Adverse possession is the outward manifestation of an inward belief.
Easement by Prescription An easement is the right of someone to use the land of another for some specific purpose. That purpose is usually spelled out in a conveyance. The easement may be for access, utilities, sight distance purposes, or any number of other things.
An easement by prescription may occur if someone’s property is used informally for an extended period of time without objection.
A common example would be where a driveway leading to one property crosses the corner of the neighboring property as it enters from the road. This creates a small triangle defined by the road, the property line and the existing driveway. If this use continues uninterrupted for a number of years, the use may become a permanent right.
The requirements for establishing an easement by prescription are similar to those for adverse possession. The claimants must establish, by clear and positive proof, that they have enjoyed the use of the property for at least twenty years, and that such use has been adverse, under claim of right, continuous, uninterrupted, visible, exclusive, and with the knowledge and acquiescence of the owner of the servient tenement. Pevear v. Hunt, 924 S.W.2d 114 (Tenn.Ct.App.1996); House v. Close, 346 S.W.2d 445 (Tenn.Ct.App.1961); Nashville Trust Co. v. Evans, 206 S.W.2d 911 (Tenn.Ct.App.1948).
In Conclusion If one is being adversely possessed it should be considered an urgent priority to act as soon as possible. The more time passes, the harder it is to rebuff an adverse claim. At the very least, one should send a registered letter (preferably notarized) to the adverse possessor notifying them of your objection to their claim. Contact an attorney immediately to preserve your rights. Get a current survey by a registered professional surveyor. It is the owner’s responsibility to act to defend the property in question; failure to do so is to relinquish it.
Here are some interesting cases regarding claims of adverse possession and prescriptive rights in Tennessee.
Hargrove v. Carlton
Tennessee Court of Appeals
UNPUBLISHED, 2001 WL 120732
February 14, 2001
Betty Holley v. Clayton Haehl, et al. (PDF)
Tennessee Court of Appeals
A Direct Appeal from the Circuit Court for Giles County No. 9936
The Honorable Jim T. Hamilton, Judge No. M1999-02105-COA-R3-CV
Filed September 14, 2000
Flora Scruggs v. Gordon Bell
Tennessee Court of Appeals
May 9, 1997
Attorneys are encouraged to comment to shed light on this important subject.
Ned Ferguson, R.L.S.
HOME 1. Courthouse Research – How Much is Enough?
Jefferey N. Lucas, LS
Professional Surveyor Magazine, May 2003
This writing is the opinion of the author. Nothing herein constitutes legal advice. Anyone seeking legal advice is advised to seek out a competent attorney.
With the passage of time, property rights become vested in those who occupy the land. This is the whole premise behind adverse possession and prescriptive rights. Many people feel that adverse possession is a bad thing. Quite the contrary, the reason for adverse possession laws is to bring peace and tranquility to neighborhoods. Those who are in possession of the land for a long enough period of time acquire title by virtue of that possession.1