The idea of adverse possession comes from the statute of limitations. The statute of limitations is the maximum amount of time available to sue someone. Basically, the statute of limitations gives you a certain number of years to act on your issue. It prevents people from sitting around and ignoring legal issues for years and years. If you wait too long, the statute of limitations prevents you from acting on the legal claim. Adverse possession is a “gloss” over the statute of limitations. At common law, which is the English legal tradition that is the backdrop of American laws across the country, the adverse possessor (the person who did not own the land, but was using it and claiming it) had to meet five criteria in order to gain title to a piece of land. If the adverse possessor met all five criteria for the whole statute of limitations (usually 10–20 years), then the possessor had a claim to the land. This claim, however, was traditionally only a defense. The possessor could use “adverse possession” to defend himself in court against the person who actually owned the land. Because it was only a defense, the adverse possessor had to wait to be sued by the true owner to assert his or her claim of ownership.
In Tennessee, common law adverse possession is still recognized, but adverse possession is also codified in the Tennessee Code Annotated in title 28, chapter 2. Under the common law in Tennessee, the adverse possessor (the person claiming the land) must meet six elements. The adverse possessor must possess the claimed land
- exclusively,
- actually,
- adversely,
- continuously,
- openly, and
- notoriously.
Cumulus Broad, Inc. v. Shim, 226 S.W.3d 366, 377 (Tenn. 2007). When the adverse possessor has continuously possessed the land for twenty years in Tennessee, then a deed to that land will be presumed. Id. at 376–77. The adverse possessor, however, cannot do so in secret and must be actively (actually) and physically possessing the land. If someone is adversely possessing part of your land, you should be able to tell. The possession must be “open and notorious” so that the true owner knows or should know that someone else is using his land. Further, if you give someone permission to use your land, then he or she can never “adversely” possess it. To be adverse, it must be without permission of the true owner. And, if you are still using your land but the adverse possessor does sometimes too, then the possessor’s use is not exclusive. The adverse possessor must meet all six criteria for twenty years in order to gain title to the land under Tennessee’s common law.
Under Tennessee’s statute, the process of adverse possession is a little bit different. The requisite time is shorter —only seven years—but the adverse possessor cannot be anyone random who happens to claim and use a piece of land. The adverse possessor under T.C.A. § 28-2-102 must have “color of title,” otherwise known as “recorded assurance of title.” T.C.A. § 28-2-102. This basically means that it looks, on the books, like the adverse possessor has a real claim to the land. There must be something recorded (usually in the county) that gives the adverse possessor the appearance of true ownership. Under T.C.A. § 28-2-102, the adverse possessor must have the appearance of title and possess the land for seven years. Even then, the adverse possessor does not gain true title; rather, the true owner is barred from bringing an action against the adverse possessor. Adverse possession always comes back to the statute of limitations. The law wants people to act quickly to preserve their rights, not wait around until they feel like it. Therefore, the law says that a true owner of the land has seven years to reclaim property that is possessed by someone else with the appearance of good title. After those seven years, the owner cannot go to court to kick out the adverse possessor. In other words, T.C.A. § 28-2-102 is a defense for the possessor, not a claim that he or she could make.
If you are concerned about someone else possessing your property, or any other legal issue, call King Law Offices at (888)-748-KING or complete a consultation request form on our website. We are dedicated to providing the highest level of legal representation and advocate.