Every state has laws that govern adverse possession -- the means by which a trespasser may occupy land and eventually become the owner. Generally speaking, for occupation to become legal possession, the trespasser must occupy the land for a long time. In Tennessee, it's 20 years unless the trespasser is occupying the land "under color of title, in which case possession can occur in as little as seven years.
The Big Four
As in most states, Tennessee statutes require four necessary conditions or actions for adverse possession to take effect:
• The occupation must be hostile: "Hostile" in the Tennessee statutes doesn't mean "aggressive" or "by force." As with every other state, for the action to be hostile it only has to be without the owner's permission and in conflict with the true owner's legal rights.
• The occupation must be actual: You can't take possession of the land simply by posting it as being your property . You have to physically occupy the land and be in control of it.
• The occupation must be exclusive and continuous: You can allow others on the property, but you must be the only person claiming to possess it or to be exercising a right. "Continuous" occupation doesn't mean you can never leave the property. You could establish continuous occupation by residing there and leaving the property every day to go to work.
• The occupation must be open and notorious: Your occupation has to be open for all to see. The additional qualification, "notorious," doesn't have the implication of "ill-known." A notorious occupation is one that the owner can't miss observing.
"Under Color of Title"
A feature of Tennessee's adverse possession statutes that it shares with 18 other states is that if the trespasser occupies the land "under color of title," the minimum time necessary to become the legal owner may shorten from 20 years to seven.
Various commentaries agree that the title presented need not be legal. In fact, for the presentation to be related to adverse possession, it cannot be -- otherwise it simply is a valid property deed. If the trespasser expresses his reliance on this invalid deed, however, the minimum term for possession accelerates from 20 years to seven.
Dangers for Tennessee Property Owners
Tennessee's acceleration of the time of possession under color of title presents a particular hazard for property owners. An illegal title may originate because its description is undeniably inaccurate -- it may locate a lake on the property that in reality is miles away, for example. But once that title is registered, the seven-year countdown period begins, even though the true owner may not be aware of this title.
Many states that include "under color of title" as a requirement for shortening the time of occupation also require that the trespasser pay taxes on the property each qualifying year. This provides some kind of check because the duplication of the tax payment alerts the true owner and the tax authority to a problem. Tennessee, however, does not require payment of taxes to shorten the qualifying period of occupation. It becomes the true owner's responsibility to see that there is no conflicting deed registered with the tax authority, usually the county treasurer. If the true owner fails to oppose an improper deed, she may lose the property.
I am a retired Registered Investment Advisor with 12 years experience as head of an investment management firm. I also have a Ph.D. in English and have written more than 4,000 articles for regional and national publications.