Adverse Possession: How To Meet the “Public” Requirement

Adverse Possession in Georgia

To establish an easement by prescription, the party making such a claim has the burden of proof. The elements of prescription are (1) possession that is in the right of the party claiming possession and not another,  (2) possession that is public, continuous, exclusive, uninterrupted and peaceable, and (3) possession accompanied by a claim of right. OCGA § 44-5-161. Possession of property in conformance with these elements for 20 years confers good title by prescription to the property. OCGA § 44-5-163.

In a recent case, Talboy v. Dukes (__ Ga. App. __, October 4, 2023; A23A1068), the Georgia Court of Appeals examined the definition of “public” possession. The dispute in question revolved around an underground sewer line that extended into an adjacent property. The Court determined that the party seeking an easement could not establish public possession since the sewer line was underground and therefore not visible to the public.

In order to determine the meaning of “public“, the Court looked up its definition in the dictionary. According to Black’s Law Dictionary, the term “public” encompasses the definition of “notorious”. “Notorious possession” is defined as a type of possession that is so visible that it is generally known and discussed by the public or people in the surrounding area. Possession or the act of holding something that has such noticeable features that the owner may be presumed to have knowledge of it and its scope. This definition was taken from the 6th edition of Black’s Law Dictionary, published in 1990.

Applying this definition to adverse possession, the Court reasoned that the claimant could not show that the property was “so conspicuous that it is generally known and talked of by the public or the people in the neighborhood” or had “such elements of notoriety that [the Claimant] may be presumed to have notice of it and of its extent.”

The law regarding obtaining title to land by adverse possession can be abstract and confusing, but Talboy provides clarity regarding how to apply the requirement of public possession in the real world. Please call us at 404-382-9991 to discuss any questions you have about an easement or adverse possession.

Private Ways in Georgia Require Seven Years of Adverse Use

David Adams, Carly Adams

Private ways in Georgia are a type of easement that permit individuals to travel to and from their property and places of business. These ways cannot be wider than 20 feet, and the person claiming the private way is responsible for keeping it open and in good condition. This information is based on OCGA 44-9-40.

Thus, if you use a path through someone’s land for seven years straight, you may have the right to use it even if it’s not yours. This is called a private way by prescription, based on OCGA § 44-9-1. If the owner of the land obstructs your path, you can take them to court under OCGA § 44-9-59(a) to have the obstruction removed. However, if the owner gave you permission to use the path , you cannot acquire the right to use the path by prescription. The owner must be informed that you are making a hostile claim to their property and must be given actual notice of your adverse use. See Douglas v. Knox, 232 Ga. App. 551, 552 (2) (1998).

If your neighbor gives you permission to use their driveway, it’s important to remember that they have the right to revoke that permission at any time. In legal terms, this means that using your neighbor’s driveway with permission does not create a private way. A recent court case, Pineda v. Lewis (__ Ga. App. __, October 4, 2023, A23A0909), reaffirmed this principle.

To create an private way, you must give your neighbor notice that your use is adverse. This is true even if you make repairs to the driveway with your neighbor’s consent.

The bottom line is that traveling over a neighbor’s property with permission does not create a private way by prescription. If you have questions regarding your property rights concerning a neighbor, please call us at 404-382-9994 to discuss.