Tag: hostile

Private Ways in Georgia Require Seven Years of Adverse Use

Posted by Jeff on

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.

Adverse Possession and Property Disputes Clarified

Posted by Jeff on

The Georgia Court of Appeals issued a decision that provides some guidance to the often-unintuitive law known as adverse possession. In Houston v. James, A20A1689 (February 3, 2021), three siblings involved in a property dispute sued each other over a 28-acre parcel owned by their deceased father. One sibling lived on and took care of the 28 acres for more than 20 years. But his father left most of the property to the other two siblings. The sibling left out argued he owned the 28 acres by adverse possession. He claimed he had had publicly, continuously, uninterruptedly, and peaceably possessed the property for more than 20 years. His two siblings disagreed, arguing that the possession was without a “claim of right.”

To be adverse, possession must be for more than 20 years and must be public, continuous, exclusive, uninterrupted, peaceable, accompanied by a claim of right, and not originate in fraud. OCGA § 44-5-161(a). Also, and quite importantly, the party adversely possessing must have a “claim of right” to the property.

A claim of right means the possessor claims the property as his own. Under Georgia law, a claim of right, or adverse possession, will be presumed from the assertion of dominion, particularly where the possessor has made valuable improvements. See Childs v. Sammons, 272 Ga. 737, 739 (2) (534 SE2d 409) (2000). Georgia courts have held that there does not need to be direct evidence of the state of mind of the possessor concerning claim of title; however, there must be evidence of some claim of title in the sense that the possessor claims the property as his own. Walker v. Sapelo Island Heritage Authority, 285 Ga. 194, 674 S.E.2d 925 (2009).

In Houston, the Court of Appeals concluded that a jury must decide whether the sibling claiming the property by adverse possession did so with a claim of right. If you have a property dispute concerning adverse possession, please call us at 404-382-9994 to discuss your options.