What is Adverse Possession and Who Can Use it to Claim Property in Tennessee?

Home » Resources » How To Turn One Home Into Two Homes With An HPR
By Rochford Law Posted on January 19, 2017 at 8:00 AM
 

What is Adverse Possession?

In the simplest of terms, adverse possession is a legal concept allowing individuals to acquire the title to a piece of land that they do not own because they have openly trespassed, inhabited, possessed, or used the property for an extended period of time. In Tennessee, neighbors or adjoining landowners can wind up in court over imprecise descriptions in deeds; fences that have marked boundaries for years, but are misplaced; outbuildings that straddle property lines; community gardens that have taken root on “vacant” lots; or deed overlaps where there’s not enough land to fulfill the descriptions for two adjoining parcels.

The history of adverse possession can be traced as far back as the Romans, then to England in the Middle Ages and beyond, to Napoleonic Code, and finally, to today’s still controversial version (Wikipedia).

While it may come as an unpleasant surprise to some Tennessee property owners certain neighbors, squatters, and civic-minded activists may benefit from this archaic legal precedent.

What are the Requirements for Adverse Possession in Tennessee?

In Tennessee, as in most states, adverse possession can be proven when the trespasser or squatter has been openly in possession of the property for a specified length of time. According to the popular online legal encyclopedia, Nolo, an individual’s possession must be:

  1. hostile (against the right of the true owner and without permission)
  2. actual (exercising control over the property)
  3. exclusive (in the possession of the trespasser alone)
  4. open and notorious (using the property as the real owner would, without hiding his or her occupancy), and
  5. continuous for the statutory period (which is either seven or 20 years in Tennessee, depending on the circumstances).

Let’s say, for example, you’ve lived in East Nashville for the past 20 years, and your property adjoins that of your neighbor. Given the rising property values and the popularity of short-term rentals throughout the area, you decide that you’d like to tear down the rustic, but dilapidated, shed in your backyard and replace it with a new and approved DADU (detached accessory dwelling unit). However, much to your (and your neighbor’s surprise), you discover that the footprint of your shed actually sits on your neighbor’s property. While it may not do much for neighborly relations, your real estate attorney can make a compelling case for you, arguing that since your neighbor allowed you to use the property for 20 years without saying anything to the contrary, she forfeited her rights to the property.

What Does “Color of Title” Mean?

In addition to the scenario described above, there are two ways individuals can gain adverse possession through what is known as “Color of Title.” Both involve improperly filed paperwork. “Color of Title” may mean that there is a legally filed document that gives the appearance of being a legal title, but the document is actually invalid. In this instance, seven years must pass before possession becomes valid. Or, it may mean that an individual has paid taxes for 20 years or more without the rightful owner or the government objecting.

Either way, adverse possession by way of “Color of Title” highlights the importance of retaining a real estate lawyer to ensure the validity of title filings.

What are the Benefits of Adverse Possession

In “An Uneasy Case for Adverse Possession,” published in the Georgetown Law Journal in 2001, legal scholar JE Stake cites many benefits for adverse possession including the following:

The Sleeping Theory, which argues that property owners who sleep on their rights by neglecting their property and allowing it to fall into disrepair, lose their rights. Adverse possession may also put otherwise abandoned land to productive use in the form of community gardens or parks, increasing community and civic pride. It may also stimulate record owners to monitor their land and eliminate barriers to development by protecting their investments.

For more information about adverse possession, or for legal representation in an adverse possession claim,  contact Rochford Lawyers to schedule a consultation.

 

Topics: Real Estate Law, Real Estate Title, Residential Real Estate Law