2021 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
Article 7 - Prescription
§ 44-5-161. Adverse Possession; Effect of Permissive Possession

1. In order for possession to be the foundation of prescriptive title, it:
   1. Must be in the right of the possessor and not of another;
   2. Must not have originated in fraud except as provided in Code Section 44-5-162;
   3. Must be public, continuous, exclusive, uninterrupted, and peaceable; and
   4. Must be accompanied by a claim of right.
2. Permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party.

(Ga. L. 1851-52, p. 238, § 2; Code 1863, § 2638; Code 1868, § 2637; Code 1873, § 2679; Code 1882, § 2679; Civil Code 1895, § 3584; Civil Code 1910, § 4164; Code 1933, § 85-402.)

- Adverse possession against cotenant, § 44-6-123.

Obtaining private ways through adverse possession, §§ 44-9-1,44-9-54,44-9-55.

- For annual survey of real property law, see 35 Mercer L. Rev. 257 (1983). For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For note, "For Sale - One Level 5 Barbarian for 94,800 Won: The International Effects of Virtual Property and the Legality of Its Ownership," see 37 Ga. J. Int'l & Comp. L. 381 (2009).

ANALYSIS

• General Consideration
• Requirements
• Right of Possessor
• Fraud
• Public, Continuous, Exclusive, Uninterrupted, and Peaceable
• Claim of Right
• Permissive Possession

RESEARCH REFERENCES

Am. Jur. 2d.

- 3 Am. Jur. 2d, Adverse Possession, § 10 et seq.

- 2 C.J.S., Adverse Possession, §§ 1, 29 et seq. 31 C.J.S., Estates, § 79.

- Adverse possession by third party or stranger of property held in trust, 2 A.L.R. 41.

Writing as essential to color of title in adverse occupant of land, 2 A.L.R. 1457.

Adverse possession of common, 9 A.L.R. 1373.

Act of trespasser as interrupting adverse possession, 22 A.L.R. 1458.

Adverse possession of railroad right of way, 50 A.L.R. 303.

Adverse possession or prescription as affected by owner's informal consent subsequent to hostile entry, 65 A.L.R. 128.

May adverse possession be predicated upon use or occupancy by one spouse of real property of other, 74 A.L.R. 138.

Interval between crops as affecting continuity of adverse possession, 76 A.L.R. 1492.

Adverse possession due to ignorance or mistake as to boundaries, 97 A.L.R. 14.

Tenant's adverse possession or use of third person's land not within the description in the lease as inuring to landlord's benefit so as to support latter's title or right by adverse possession or prescription, 105 A.L.R. 1187.

Adverse possession or prescription in respect of burial lot, 107 A.L.R. 1294.

Use by public as affecting acquisition by individual of right of way by prescription, 111 A.L.R. 221.

Adverse possession as against remainderman during life estate as affected by fact that conveyance by life tenant purported to cover fee, 112 A.L.R. 1042.

Purchase of, or offer to purchase or to settle, outstanding title, interest, or claim as interrupting continuity of adverse possession as regards another title, interest, or claim, 125 A.L.R. 825.

Adverse possession by stranger as against mortgagee, 136 A.L.R. 782.

Cutting of timber as adverse possession, 170 A.L.R. 887.

Title by adverse possession as affected by recording statutes, 9 A.L.R.2d 850.

Tacking adverse possession of area not within description of deed or contract, 17 A.L.R.2d 1128.

Adverse possession: sufficiency, as regards continuity, of seasonal possession other than for agricultural or logging purposes, 24 A.L.R.2d 632.

Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R.2d 1214.

Acquisition of title to mines or minerals by adverse possession, 35 A.L.R.2d 124.

Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R.2d 986.

Grantor's possession as adverse possession against grantee, 39 A.L.R.2d 353.

Title by or through adverse possession as marketable, 46 A.L.R.2d 544.

What acts, claims, circumstances, instruments, color of title, judgment, or thing of record will ground adverse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R.2d 299.

Judgment or decree as constituting color of title, 71 A.L.R.2d 404.

Adverse possession of land by personal representative as against deceased owner's heirs or devisees, 73 A.L.R.2d 1097.

Adverse possession involving ignorance or mistake as to boundaries - modern views, 80 A.L.R.2d 1171.

Adverse possession based on encroachment of building or other structure, 2 A.L.R.3d 1005.

Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.3d 678.

Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48 A.L.R.3d 818.

Owner's surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession, 76 A.L.R.3d 1202.

Fence as factor in fixing location of boundary line - modern cases, 7 A.L.R.4th 53.