adverse possession in tennessee
The Basics of Adverse Possession in Tennessee
If you have ever heard the term “squatters,” then you already have some idea of what adverse possession is in Tennessee. Adverse possession is defined by Cornell Law School as
“a doctrine under which a person in possession of land owned by someone else may acquire valid title to it.”
Simply put, adverse possession is a legal way to gain ownership of someone else’s land just by living on it, albeit under very specific circumstances. The history of adverse possession dates back to medieval Europe, although before that, the history of the legal concept is unclear. Still, we know that a form of adverse possession existed in the Code of Hammurabi.
One of the earliest legal codes, the Code of Hammurabi provided,
“if a chieftain or a man leave his house, garden, and field and hires it out, and someone else takes possession of his house, garden, and field and uses it for three years: if the first owner returns and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it,”
Law Code of Hammurabi, Number 30 (c. 1792–1750 BC).
Despite the concept being thousands of years old, modern societies continue to hold that after a certain amount of time, owners of land cannot sue to recover it when used by another. In Tennessee, adverse possession is codified at Tenn. Code Ann. § 28-2-103. That section provides that:
(a) No person or anyone claiming under such person shall have any action, either at law or in equity, for the recovery of any lands, tenements or hereditaments, but within seven (7) years after the right of action accrued.
(b) No possession of lands, tenements or hereditaments shall be deemed to extend beyond the actual possession of an adverse holder until the muniment of title, if any, under which such adverse holder claims such lands, tenements or hereditaments is duly recorded in the county in which the lands are located.
The language is a little archaic, but section (a) provides that the legal owner of land cannot sue for his land after seven years of adverse possession. Or, to think of it another way, to gain title to land from the legal owner, the person living on it must possess the land for at least seven years before they can claim ownership.
Section (b) provides that until an actual title or deed or proof of ownership is recorded, the adverse possessor does not own the land, and only possesses it so long as they actually are using the land. The important thing to note is that adverse possession can only be claimed after a period of 7 years.
“Limitation on Action” Statute
The Tennessee Supreme Court has called the adverse possession statute a “limitation on action” statute, meaning that adverse possession holders may use it defensively, rather than offensively.
Essentially, the statute may be used only in defense of a suit, and not as a way to keep the legal owner from using property, and the statute only protects the adverse holder after 7 years of actual possession. Importantly, the adverse holder is only protected as to the portion of the land actually in his possession. So, if someone is an adverse holder of a small cabin on a 9-acre plot of land, and only uses the cabin, they can only be protected as to the cabin, and not the acreage.
Finally, the statute provides a defensive right, but it does not convey title. It simply bars the right of the title owner to recover property that has been adversely held for more than seven years.
Elements of Adverse Possession
In order to utilize the adverse possession defense, the adverse holder must prove six specific elements by clear and convincing evidence, which is evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. To establish adverse possession, the holder must show that their possession was:
Actual;
Adverse;
Continuous;
Exclusive;
Open; and,
Notorious
for the entire seven-year period. In other words, the “squatter” must have actually possessed the land for the entire seven years, their possession cannot have been secret, shared with others, and most importantly, their possession must have been without the owner’s permission (sometimes referred to as “hostile” possession).
What Does “Adverse” Entail?
As mentioned above, adverse possession does not require any ill will between the parties, but only requires that the owner hasn’t given permission. Also, it is important to note that just because the owner did not object to the possession, it does not imply that the owner gave permission. So, if your land has squatters on it, you can’t do nothing and then claim that you gave permission for them to be there. If that were the case, any owner could defeat the adverse possession defense by simply not doing anything.
On the other hand, simply possessing the land does not show an adverse claim. In fact, the seven-year clock does not start ticking until the adverse holder actually asserts a right adverse to the legal owner, and the owner knows about it.
Summary
The idea of squatter’s rights or adverse possession is a little complicated, but the basics can be boiled down to a couple of core ideas. First, you can’t just move on to somebody’s land for seven years and then own it. Remember, because adverse possession is defensive, you cannot use the statute to take title from a legal owner. Second, the defense will fail if the owner gives permission for the holder to possess the land. Third, the defense will fail if the possession was secret, or if it was not continuous for seven years. Finally, the defense only applies to the land that the holder actually possesses, and even then, will not convey title.
If you know of someone using your land without permission, you should take action quickly and consult with an attorney to determine the potential for an adverse possession defense. The Otten Law Firm can review your case and provide you with guidance to protect your rights.
