In Tennessee, adverse possession is the acquisition of another party’s real estate by squatting on, or possessing, the property in a way that is harmful to the property owner's interest.
In order to engage in adverse possession under squatter's rights, the occupier must possess the property in a way that is:
- Open — done with other parties’ knowledge, so the occupation could be discoverable by other parties
- Hostile — a possession that disadvantages the actual owner
- Exclusive — one only by the party claiming title
- Continuous — or a set period of time, meaning there are no breaks in the occupation of the property
- Adverse — harmful to the claim of the owner
Tennessee adverse possession law provides that the minimum continuous period of occupation is seven years.
Under Color of Title
Under Tennessee law, in order to adversely possess property “under color of title,” the occupier must hold the property due to:
- A conveyance (transfer such as a contract)
- Devise (disposition by a last will and testament)
- A grant
- Any other assurance of title to convey the estate in fee
The term “estate in fee” means the entire property, without restrictions, such as a neighbor claiming shared ownership of a pond on the property. The occupier must hold the property without any claim by legal action – a lawsuit seeking money damages, or by a claim in equity – a lawsuit seeking a non-monetary remedy, like an injunction.
An injunction is an order by the court to stop taking an action, such as an order to stop occupying the land. The occupier must hold the property free of claims for at least seven years. Any lawsuits against the occupier regarding the ownership of the property must have failed for the occupier to gain adverse possession.
Also, a document, like a conveyance, must have been recorded in the county register’s office of the county or counties in which the land lies. The recording must have been for the full term of at least seven years of adverse possession.
The conveyance may not have actually given the occupier title to the property.
An example of an improper conveyance would be an invalid deed naming the occupier as the owner of the property. A deed can be invalid if the grantor, the person conveying the property, did not have the authority to transfer the property.
Payment of Property Taxes
Another way to gain adverse possession is to pay state and county property taxes on the property for 20 years or more. This method of gaining ownership of property only works if the actual property owner failed to pay the taxes.
This law does not apply to occupiers who are under 18; who have been adjudged incompetent; or anyone claiming through them, within three years after their legal rights are restored.
Adverse Possession and Trespassers
A trespasser can make an adverse possession claim if they meet all the requirements for the action.
Their claim must be open, hostile, exclusive, adverse and continuous for seven years with a county recording if done under color of title, or for 20 years if done by payment of taxes.
A trespasser’s action can be thwarted by the local government passing an ordinance that occupation without consent is illegal.
For example, Davidson County and the City of Nashville have ordinances that make it unlawful for a person to move into, or to occupy, a house, room or apartment in the area without the consent of the owner or their authorized agent.
Each day of an unlawful occupancy can be regarded as a separate offense.
Fighting Adverse Possession
A property owner can fight adverse possession by showing that the occupier failed to meet the requirements of an adverse possession action.
For example, if the occupier lived on the property for three years, then moved away for three months, and then returned to live on the property for four years, the adverse possession would not have been continuous for the required statutory period of seven years.
A property owner can also show records that they, not the occupier, were the person to pay taxes on the property.
Hiring a Real Estate Attorney
An individual who wants to make or fight an adverse possession claim should consult a real property attorney. Such an attorney can analyze a party’s occupancy of the land to determine if it meets the requirements for a successful adverse possession claim.
If the matter involves a contract between the parties, they should look for a real property attorney who has experience in real estate contracts.
The same attorney cannot represent both parties because that would constitute a conflict of interest for the attorney. If the parties want to work things out, they can consult an attorney together to learn their options.
A real property attorney can:
- Draft, modify or analyze a real property contract.
- Advise a party on how to represent themselves.
- Argue on behalf of a party in court.
- Negotiate a settlement.
- Justia.com: Tennessee Code Annotated, Section 28-2-103 Seven-year Period Runs From Time Right Accrued — Extent of Possession
- Merriam-Webster.com: Definition of "Color of Title"
- Code of the Metropolitan Government of Nashville and Davidson County, Tennessee: Section 11.24.060 Occupying Premises Without Owner's Permission - Defacing Improvements
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.