How Do I Gain Adverse Possession of Abandoned Property in Georgia?
Full Question:
Answer:
The worst case scenario is that you spend money in legal expenses and lose the case. Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period, which varies by state, are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement.
The following are Georgia statutes:
44-5-160. Title by prescription is the right to property which a
possessor....
Title by prescription is the right to property which a possessor
acquires by reason of the continuance of his possession for a period
of time fixed by law.
44-5-161. (a) In order for possession to be the foundation of
prescriptive....
(a) In order for possession to be the foundation of prescriptive
title, it:
(1) Must be in the right of the possessor and not of another;
(2) Must not have originated in fraud except as provided in Code
Section 44-5-162;
(3) Must be public, continuous, exclusive, uninterrupted, and
peaceable; and
(4) Must be accompanied by a claim of right.
(b) Permissive possession cannot be the foundation of a prescription
until an adverse claim and actual notice to the other party.
44-5-162. (a) In order for fraud to prevent the possession of property
from....
(a) In order for fraud to prevent the possession of property from
being the foundation of prescription, such fraud must be actual or
positive and not merely constructive or legal.
(b) When actual or positive fraud prevents or deters another party from
acting, prescription shall not run until such fraud is discovered.
44-5-163. Possession of real property in conformance with the requirements
of....
Possession of real property in conformance with the requirements of
Code Section 44-5-161 for a period of 20 years shall confer good
title by prescription to the property against everyone except the
state and those persons laboring under the disabilities stated in
Code Section 44-5-170.
44-5-164. Possession of real property under written evidence of title
in....
Possession of real property under written evidence of title in
conformance with the requirements of Code Section 44-5-161 for a
period of seven years shall confer good title by prescription to the
property against everyone except the state and those persons laboring
under the disabilities stated in Code Section 44-5-170, provided
that, if the written title is forged or fraudulent and if the person
claiming adverse possession had actual notice of such forgery or
fraud when he commenced his possession, no prescription may be based
on such possession.
44-5-165. Actual possession of lands may be evidenced by enclosure,
cultivation,....
Actual possession of lands may be evidenced by enclosure, cultivation,
or any use and occupation of the lands which is so notorious as to
attract the attention of every adverse claimant and so exclusive as to
prevent actual occupation by another. As to any claim which is not
vested under this chapter prior to July 1, 2008, no party shall attempt
to establish possession of lands for purposes of this article for any
lands depicted within the applicable tract identified on the official
map of any railroad filed with the Interstate Commerce Commission
pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as
amended, unless such party establishes that such occupancy interferes
with the operations of such railroad corporation or railroad company;
provided, however, that each railroad corporation and railroad company
shall file and record such official map of the railroad with the
superior court for the county in which such land depicted on such
official railroad map is situated. Any court of this state shall take
judicial notice of the information set forth in any such official map
properly filed and recorded by such railroad corporation or railroad
company. This Code section shall not be applied to adverse claims of
aboveground utilities which have been initiated but which have not
vested prior to July 1, 2008; provided, however, that a railroad
corporation or railroad company shall not be precluded from enforcing
rights of ownership against any adverse claims which have not vested.
44-5-166. (a) Constructive possession of lands exists where a person who
has....
(a) Constructive possession of lands exists where a person who has
paper title to a tract of land is in actual possession of only a part of
such tract. In such case, his or her possession shall be construed to
extend to the boundary of such tract. With respect to a railroad
corporation or railroad company, construction of the road bed and track
on the railroad right of way shall constitute actual possession and
occupancy of all lands depicted within the applicable tract identified on
the official map of the railroad filed with the Interstate Commerce
Commission pursuant to the Railroad Valuation Act of March 1, 1913,
Stat. 701, as amended; provided, however, that each railroad corporation
and railroad company shall file and record such official map of the
railroad with the superior court for the county in which such land
depicted on such official railroad map is situated. Any court of this
state shall take judicial notice of the information set forth in any such
official map properly filed and recorded by such railroad corporation or
railroad company.
(b) When land is included in the boundaries of more than one tract so
that adjacent owners are in constructive possession of the same land,
no prescription shall arise in favor of any of such owners.
44-5-167. Possession under a duly recorded deed shall be construed to
extend....
Possession under a duly recorded deed shall be construed to extend to
all the contiguous property embraced in such deed. To the extent that any
such property is bounded on one or more sides by a railroad, and the
description of the property contained in such deed makes reference to the
railroad or the railroad right of way as a boundary for such property,
such reference shall be construed to mean that the boundary line is
located at the edge of the tract depicted on the official map of the
railroad filed with the Interstate Commerce Commission pursuant to the
Railroad Valuation Act of March 1, 1913, Stat. 701, as amended, and such
depictions contained on such official railroad map shall be conclusive as
to the location of the boundary line between the property of the railroad
and any adjoining property owner as of the date of such railroad map;
provided, however, that each railroad corporation and railroad company
shall file and record such official map of the railroad with the superior
court for the county in which such land depicted on such official
railroad map is situated. Any court of this state shall take judicial
notice of the information set forth in any such official map properly
filed and recorded by such railroad corporation or railroad company.
44-5-169. Possession of land shall constitute notice of the rights or title
of....
Possession of land shall constitute notice of the rights or title of
the occupant. Possession by the husband with the wife is presumptively
the possession of the husband, but this presumption may be rebutted.
44-5-170. Prescription shall not run against the rights of a minor during
his....
Prescription shall not run against the rights of a minor during his
minority, a person incompetent by reason of mental illness or retardation
as long as the mental illness or retardation lasts, or a person
imprisoned during his imprisonment. After any such disability is
removed, prescription shall run against the person holding a claim to
realty or personalty.
44-5-171. Prescription shall not run against persons under disability
during....
Prescription shall not run against persons under disability during
the period of the disability. Upon removal of the disability the
prior possession may be tacked or added to the subsequent possession
to make out the prescription.
44-5-172. An inchoate prescriptive title may be transferred by a person
in....
An inchoate prescriptive title may be transferred by a person in
possession to his successor so that successive possessions may be
tacked to make out the prescription.
44-5-173. (a) Prescription shall not run against an unrepresented estate
until....
(a) Prescription shall not run against an unrepresented estate until
representation is had thereon, provided such representation commences
within five years.
(b) Prescription shall not run against a joint title which cannot be
severally enforced or where any of the joint owners labor under one
of the disabilities specified in Code Section 44-5-170.
(c) Prescription shall not run against a party when his action,
timely commenced, is involuntarily dismissed or voluntarily dismissed
for the first time if he recommences the same within six months.
44-5-174. In making out a prescriptive title, an innocent purchaser may
not....
In making out a prescriptive title, an innocent purchaser may not
tack to the time period of his own possession the time of possession
of a grantor whose possession originated through fraud against the
true owner.
44-5-175. An incorporeal right which may be lawfully granted, such as a
right....
An incorporeal right which may be lawfully granted, such as a right
of way or the right to throw water upon the land of another, may be
acquired by prescription.
44-5-176. Prescription shall not run against the owner or holder of a
mortgage,....
Prescription shall not run against the owner or holder of a mortgage,
a deed to secure debt, a bill of sale to secure debt, or any other
instrument creating a lien on or conveying an interest in real or
personal property as security for debt in favor of a person who has
actual or constructive notice of such instrument.
44-5-177. Possession of personal property in conformance with the
requirements....
Possession of personal property in conformance with the requirements
of Code Section 44-5-161 for a period of four years confers title to
the property by prescription. No prescription arises if the property
is concealed, is removed from the state, or is otherwise not subject
to reclamation.
