Adverse Possession and Why Every Property Owner Should Understand It

Use It or Lose It Is Not Just a Saying
The Quiet Way Strangers Can Take Your Land

Most people have never heard the term adverse possession until someone tries to take a piece of their land using it. By then, it is usually too late to do much about it except hire a lawyer and hope for the best. That is not a position you want to find yourself in, especially after spending a lifetime building and protecting what you own.
Adverse possession is a legal doctrine that allows someone who occupies land they do not own to eventually gain legal title to that land if certain conditions are met over a specified period of time. It sounds almost un-American when you first hear it. How can someone take your property just by using it? But the doctrine has been part of English and American law for centuries, and it is alive and well in every state including Florida.
A recent Georgia Supreme Court case called Brownphil versus Cudjoe illustrates exactly how this works and why property owners need to pay attention.
The facts were straightforward. Two parties had competing claims to an undeveloped lot in Bibb County, Georgia. One party, Brownphil, had an unbroken chain of title going back through recorded deeds. The other party, Cudjoe, had a deed to the same property, but his chain of title had gaps. Cudjoe knew his deed was not supported by a continuous chain, so he asserted adverse possession instead, claiming he had been in possession of the property long enough under Georgia law to gain title regardless of the paperwork problems.
The case worked its way through the Georgia court system. The trial court sided with Cudjoe. The appellate court affirmed. Brownphil appealed to the Georgia Supreme Court, which finally vacated the lower court decisions and sent the case back for further proceedings.
The Supreme Court made an important distinction that every property owner should understand. Under Georgia law, someone can gain title by adverse possession through prescription after twenty years of continuous possession, or in as little as seven years if they possess the property under written evidence of title, even if that written evidence is defective. The phrase under color of title means the person has a document that looks like it conveys ownership but fails to do so because of some defect.
Here is the critical point. There can be no adverse possession without actual possession of the land. A recorded deed by itself, even one that looks valid, cannot establish adverse possession if the person claiming it was never actually on the property, using it, maintaining it, or treating it as their own. The Georgia Supreme Court found that the lower courts had not properly analyzed whether Cudjoe had actually possessed the land before concluding he had acquired title through adverse possession.
Now let me explain why this matters to you.
If you own property, particularly vacant land, rural acreage, or lots you do not visit regularly, someone else might be using it. They might be grazing cattle on it, storing equipment, building a fence that encroaches a few feet onto your side of the line, or simply treating it as their own while you pay the taxes and assume everything is fine.
Depending on your state, if they do this openly, continuously, and without your permission for a period of years, ranging typically from seven to twenty years depending on the circumstances and jurisdiction, they may be able to claim legal ownership. And if you have not been paying attention, you might not find out until they file a quiet title action and a process server shows up at your door.
The defenses against adverse possession are straightforward but require vigilance. First, know your property boundaries. Have them surveyed if there is any doubt. Second, inspect your property regularly, especially vacant land. Third, if you discover someone using your property without permission, act immediately. Send them written notice demanding they stop. Document everything. If necessary, file a trespassing complaint or seek an injunction. The clock stops running on adverse possession claims when the true owner takes action to assert their rights.
Do not assume that paying property taxes protects you. In most states, paying taxes is evidence of ownership but does not by itself defeat an adverse possession claim if the other elements are present.
There is another form of property taking that people often confuse with adverse possession, and that is eminent domain. These are not the same thing. Eminent domain is the government's power to take private property for public use, but the government must pay you just compensation. The Fifth Amendment to the Constitution requires it. Adverse possession, by contrast, involves a private party taking your property through occupation and use over time, and they do not have to pay you anything if they succeed.
Both doctrines can result in you losing property. One requires compensation. The other does not. Understanding the difference is important.
For retirees especially, this is not an abstract legal concept. Many of you own property you do not use daily. Vacation homes. Hunting land. Lots you bought decades ago thinking you might build on them someday. Family farms that have been in the family for generations but nobody lives on anymore. These properties are prime candidates for adverse possession claims if you are not careful.
The lesson from cases like Brownphil versus Cudjoe is simple. Ownership requires attention. Paper title is important, but it is not everything. If you want to keep what is yours, you need to know what is happening on your land, and you need to act when someone else starts treating it as theirs.