The Atlanta Journal-Constitution
How to prevent squatters from taking your property
If you own real estate, you have the right to keep unwanted intruders off your property.
You can use fences or signs, or even just tell a trespasser to stay away. If it happens repeatedly, you can call the police, who typically warn the intruder to stay away and, if necessary, even make an arrest.
Another kind of trespasser is more permanent: someone who is using your property as you would use it. A neighbor who puts up a fence two feet over the boundary line is trespassing, and so is a neighbor whose garage has been on your property for several years.
It’s called “adverse possession,” and its is a very real threat to your home.
You’ll be surprised to learn that, in Georgia, under certain conditions, a trespasser can come onto your property, occupy it, and gain legal ownership through the courts. That’s adverse possession.
Sometimes called “notorious possession,” a squatter can gain ownership of just a few feet of property or hundreds of acres. And he doesn’t need to intend to take the land by adverse possession.
It can happen through a survey mistake. For example, a neighbor relies on a flawed property description in a deed when building a fence on your property. This is especially true when the description is “metes & bounds,” as is the case with many older parcels.
Q: How does a claim like this end up in court?
A: Questions about legal ownership of property may arise in various situations, such as in the sale of a house.
For example, a closing attorney might refuse to issue title insurance when a property is sold when the neighbor’s garage is found to be standing even slightly on the property.
If questions about ownership of land arise in this type of situation and the parties involved can’t find a solution, the issue is likely headed to court.
The property owner may sue the interloper (for example, the neighbor whose garage is encroaching), or the squatter may file a lawsuit to “quiet title.” When that happens, the court will decide who owns what.
When courts look at adverse possession claims, they typically apply a four-part test. To qualify as adverse possession, the trespasser’s occupation of the land must be:
Hostile, that is, actually occupied
Actual, meaning that the squatter must be physically present
Open and notorious, meaning the occupancy must be obvious to anyone
Exclusive and continuous, meaning that the possession can not be shared and exist for a span of time specified in the law.
In Georgia, that statutory span is seven years to obtain the “color of title.” That means they, at least, have a legal claim similar to a lien or “cloud” on the title.
After 20 years, Georgia law recognizes that the squatter has the presumption of “prescriptive title.”
The Georgia Real Estate Commission explains the occupancy required this way: “Possession must be public, continuous, exclusive, uninterrupted, peaceable, and not merely permissive.”
One interesting fact is that Georgia law exempts the state itself from any loss of ownership due to adverse possession, so don’t plan on occupying Sapelo Island anytime soon.
How can you prevent adverse possession?
Keep a watchful eye on your property. If you suspect that someone has a possible adverse possession claim, deal with the problem as quickly as possible.
To prevent a trespasser from gaining property ownership, you can take the following steps:
Post “no trespassing” signs and block entrances with gates. If you can prove you had signs posted, it can only help in court.
Give written permission to someone to use your land, and get their written acknowledgment. If you find a squatter, give them your permission in writing. This can defeat adverse possession claims in the future, especially if they sign the agreement also.
Offer to rent the property to the trespasser.
Call the police and ask for a police report.
And if all else fails?
You need a lawyer. You may need to file a lawsuit to eject the squatter from the land. You must act before the trespasser has been in possession long enough, under Georgia law, to make a successful adverse possession claim.
Atlanta native John Adams is a broker, broadcaster, and writer who owns and manages residential real estate in the Atlanta area. He answers any and all real estate questions on his award winning radio show every Sunday at 11 a.m. on WGKA 920am. You can contact John through his website at Money99.com.
Keep a watchful eye on your property. If you suspect that someone has a possible adverse possession claim, deal with the problem as quickly as possible.