Squatters' Rights in Tennessee

The phrase “squatters' rights in Tennessee” sounds as if the state might encourage illegal occupancy of real property. While this is not the case, Tennessee, like most states, has an adverse possession law.

Adverse possession is a method of acquiring rights to unoccupied property by living there—squatting. But it is hardly the work of a moment. It can take decades of uninterrupted occupancy to acquire legal ownership status in Tennessee.

Most people who want real property get it by buying it from the owner, obtaining a deed of conveyance and filing that deed. But that's just the most common way to acquire property; it's not the only way.

Obviously, some individuals are gifted property, and others inherit it. Yet others acquire real estate through adverse possession, which involves living on, or using, land that belongs to another.

Adverse possession occurs when someone makes a claim to own property that legal records indicate is actually owned by another. Claiming to own property through adverse possession means that the party possessing and using the land wants to become the current owner and replace the record owner of title.

This is known in some states as "squatter's rights." The term "squatting" refers to the practice of occupying an abandoned or unoccupied building or piece of land without the owner's permission. A squatter does not own the property, nor do they try to buy it or even rent it.

While many people consider squatting as unlawful trespassing, the terms are not synonymous. Trespass is a criminal offense, while squatting is only a civil offense. Once the legal owner learns of the squatters and tells them to get out, they become trespassers.

It is worth noting that most adverse possession claims are not brought by itinerant individuals living off the land, as the term "squatters" implies. Rather, most people who use adverse possession laws are themselves property owners and, in fact, neighbors of the landowner at issue.

These respectable citizens either mistake the boundaries of their property; or for years use some section of the neighboring lot for parking, a backyard garden, or even as a site for a garage.

Adverse possession is a legal doctrine of long standing. It dates back centuries to provisions of European law at a time when a ruler or a lord was said to own virtually all property. The adverse possession doctrine was developed as English peasants moved onto, and worked, property technically owned by an absent lord who did not step up and assert title. As time passed, the peasant farmers claimed ownership.

In time, the English Parliament recognized adverse possession rights, and other European governments followed. France waited until 1804 to add the right to adverse possession to the Napoleonic Code. Each country that added these provisions designed their own qualifications for a claim and set up procedures for the landowner to object.

Even today, England continues to recognize the right to adverse possession, and many American states have followed this example. Although some believe this is fundamentally unfair, it certainly encourages owners of property not to let it fall into neglect.

Most states have adverse possession laws and Tennessee is no exception. The first time people hear about this, they are often surprised that a state would support this type of squatting. But for many years, governments, as well as society, have disapproved of the neglect of real property. That led states to reward those who worked the neglected property with ownership if they continued unnoticed by the landlord long enough.

It goes without saying that a property owner who actually works the land or actively maintains real property will notice if a stranger with no ownership interest to title starts living there or using their land.

The adverse possession laws stem from the general public policy that vacant property should not remain unused, unimproved and unproductive. This leads directly to the notion that a person who actively uses, maintains and improves a piece of land may have a stronger claim to it than a property owner who neglects the property.

Owners who lose property to adverse possession are usually owners who have left the property unused and unsupervised for years.

Squatter's rights in Tennessee are set out in Tennessee Code Section 28-2-101 (2021), and the provisions are framed in terms of a statute of limitations. A statute of limitations sets a limit for how long a person has to bring a particular legal action.

For example, if there is a two-year statute of limitations for personal injury in a vehicle accident, the victim has a two-year window in which to sue. If they wait until after this period, the suit is barred by the statute of limitations, also called "time-barred

The Tennessee adverse possession provision provides that no property owner can bring an action for the recovery or possession of real estate (an eviction action) unless the person sues to claim title within a certain period of time after the adverse possession starts.

Essentially, the property owner has either seven years or 20 years to bring an eviction action against a squatter, or a "continuous trespasser."

Once the statute of limitations runs out, the property owner loses the right to evict, and the person who squatted there may claim title. For that to happen, the possession must have been:

• Actual.
  
• Open.
  
• Hostile.
  
• Continuous.
  
• Exclusive.
  

Each of these terms has a specific meaning in the law, which meaning may not line up with the ordinary and common usage.

To claim the right to title of property by adverse possession, the person making the claim must have met five conditions set out by the courts. These all relate to the way they possess the property. Claimants must show actual possession, open possession, hostile possession, continuous possession and exclusive possession. What exactly do these terms mean in Tennessee?

• ‌Actual possession:‌ An individual claiming adverse possession in Tennessee must have been using the property in some active way. Just thinking about it as their own or considering it as a future home is not sufficient for adverse possession. True actual possession would be obvious to the legal owner if they stopped by to look at the property.
• ‌Open possession:‌ The person occupying the property can't be sneaky about it. Since adverse possession rights stem from the idea that a property owner should be taking care of, and safeguarding, their property, anyone seeking to establish an adverse possession claim must openly occupy the property. Behavior like entering the property only at night under cover of darkness is not open possession. Open possession means that the owner would be able to see the squatters if they passed by to look.
• ‌Hostile use​:​‌ Violence is not required here, although this term suggests that. "Adverse" is the actual keyword. Hostile or adverse simply means that the owner has not given anyone the right to use the house or land. If the squatters pay the owner rent, even as little as $1.00 a month, the occupancy is not hostile, but with the consent of the owner.
• ‌Continuous possession​:​‌ Those occupying the property must be doing it regularly enough that an owner would have the opportunity to discover the occupancy if they were managing the property. Squatters are merely trespassers if they enter every July for a weekend; they are not in continuous possession. The individual must reside on the property for seven or 20 continuous, uninterrupted years before they can make an adverse possession claim. They cannot abandon the property, return to it later and claim the time they were gone as part of the continuous possession time period.
• ‌Exclusive use:‌ For adverse possession, those occupying the property must act as if they own it. They must prevent other people from using it, including the true owner.
  

The doctrine of adverse possession requires that the land be possessed for seven or 20 years. These are very different periods of time because the lower, seven-year standard applies only if the person occupying it is doing so "under color of title." This phrase has a particular significance in the law.

The term "color of title" is found often in research about adverse possession in Tennessee. Color of title simply means that someone has gone some distance toward gaining ownership of the property, but still lacks certain elements. For example, they may be missing one or more of the correct legal documents, memorials or registrations.

While Tennessee does not mandate that a squatter have some color of title to make an adverse possession claim, it does give those with color of title a lesser requirement of continuous occupation time. Those having color of title need only show seven years of continuous occupation instead of the usual 20 years.

When the squatter has some documentation required for ownership, the owner of the property must file an eviction within seven years or they are forever forbidden from doing so. If the squatter has no legitimate claim to title, they do not have "color of title." In that case, they must occupy the land continuously for the full 20-year period.

Some states recognize adverse possession claims only if the squatters actually pay state property taxes for the full period. Other states do not require the claimants to pay annual property taxes.

Do squatters have to pay property taxes in Tennessee in order to make adverse possession claims? The answer is: sometimes. Some squatters must pay taxes; others do not have to.

In Tennessee, for an adverse possession claim, squatters must pay property taxes unless they have color of title. If they do not have color of title they must pay property taxes for all 20 years of continuous occupation time. But, if the squatter has color of title, the continuous occupation time frame is dropped to 7 years, and the squatter does not have to pay property taxes for those years.

It is interesting to note that Tennessee law also bars an owner of real property from making any claims of ownership at all if they have failed to pay their state and county property taxes for 20 years or more.

The law declares them "forever barred from bringing any action in law or in equity to recover the same, or to recover any rents or profits therefrom..." (Title 28 Chapter 2 Section 101.)

So, if an owner of property in Tennessee comes back after a few years away and finds squatters dwelling there, can an adverse possession claim be stopped? Yes, and quite easily, as long as the seven- or 20-year statutory period has not passed.

That is, if the squatter does not have claim of title, the owner can stop the claim in its tracks. All they have to do is file a court eviction action no later than 19 years and 364 days after the occupation began. At 20 years, the statute of limitations runs, and the owner is barred from claiming their piece of property.