Adverse Possession

Question 1

What is adverse possession called in GA

Answer 1

Title by prescription

Question 2

Elements for Adverse Possession

Answer 2

For possession to ripen into title, it must be: COAH

C - Continuous
O- Open and notorious
A - Actual and exclusive
H - Hostile

Question 3

Continuous Element (Adverse Possession)

Answer 3

A claimant’s adverse possession must be continuous throughout the statutory period - meaning there must be no interruption

Intermittent periods of occupancy are not sufficient

However, constant use is not required as long as possession is of the type the usual owner would make.

NOTE - there is also a possibility of tacking for the purpose of possession so it need not be by the same person in some circumstances

Question 4

Open and Notorious Element (Adverse Possession)

Answer 4

The possessor’s occupation must be sufficiently apparent to the true owner to put him on notice that a trespass is occurring

Question 5

Actual and Exclusive Element (Adverse Possession)

Answer 5

Generally, an adverse possessor will gain title only to the land they actually occupied (actual).

However, in some cases actual possession of the entire parcel is not necessary if an possessor enters under color of title - she is deemed to be in constructive possession of all the land that the deed describes, as long as she is in possession of a reasonable portion of that land.

Exclusive possession means that the possessor is not sharing the land with the true owner or the public.

Question 6

Hostile Element (Adverse Possession)

Answer 6

The hostility element requires the possessor enter without the owner’s permission. The possessor’s state of mind is irrelevant.

NOTE - when possession starts permissively, possession does not become adverse until the possessor makes it clear to the owner that they are claiming hostility

Question 7

GA Adverse Possession

Answer 7

GA provides for a statutory period of 20 years if possession is without written evidence of title (color of title)

GA provides for a statutory period of 7 years if possession is under a written evidence of title.

EFFECT OF FRAUD - Actual fraud (fraud involving moral turpitude) prevents possession from being the basis of prescription. Where actual fraud prevents someone from acting, prescription does not run until the fraud is discovered.

GOOD FAITH BELIEF - the possessor must have a good faith belief in their right to possession. An out-and-out trespasser cannot gain title through adverse possession.

Question 8

Tacking for Adverse Possession

Answer 8

One adverse possessor may tack onto his time with the land his predecessor’s time, so long as there is privity between the possessors. Privity is satisfied by any non-hostile nexus, such as contract, deed, or will.

Ousters cannot tack on their predecessors

Question 9

Disabilities Adverse Possession

Answer 9

The statute of limitations will not run against an owner who is afflicted with a disability AT THE TIME the adverse possession begins.

NOTE - disability arising after the adverse possession has begun does not prevent the statute of limitations from running.

Question 10

GA Disabilities Adverse Possession

Answer 10

In GA, the statutory period does not run against any person under a disability during the period of disability regardless of whether the disability was present when the cause of action arose.

Upon removal of the disability, the prior possession may be tacked onto subsequent possession (if it was before the disability arose)

Question 11

Adverse Possession and Future Interests

Answer 11

The statute of limitations does not run against a holder of a future interest until the interest becomes possessory