In real estate, nothing is quite as alarming as a claim of adverse possession—the legal doctrine that allows a trespasser to gain ownership of your property by openly and continuously using it for a statutory period. A common element in many of these claims is “Color of Title,” which often confuses property owners into thinking a claim is unbeatable.

Recent court rulings across the country, including significant clarifications in states like Georgia (e.g., Brownphil, LLC v. Cudjoe) and Washington, confirm a vital legal truth: having a defective deed (Color of Title) is not a substitute for physical possession. Simply possessing a flawed document is insufficient; the claimant must still meet the rigorous, centuries-old standards of actual, continuous physical possession of the disputed land.

This distinction is the most powerful defense argument for a property owner facing an adverse possession lawsuit.

What is ‘Color of Title’?

Color of Title refers to a document—such as a deed, will, or court decree—that appears to convey title to a piece of property but is legally defective and, therefore, fails to transfer actual ownership.

Common reasons a document might grant Color of Title instead of true title include:

• Defective Execution: The deed was not properly signed, witnessed, or acknowledged.

• Lack of Authority: The grantor (seller) did not actually own the property or lacked the legal right to sell it.

• Faulty Description: The deed contains an incorrect or ambiguous legal description of the land.

In adverse possession law, having Color of Title is a huge advantage for the claimant because it typically:

1. Shortens the Statutory Period: Many states reduce the required possession time (e.g., from 20 years to 7 or 10 years).

2. Extends the Claim: Actual occupation of part of the land described in the defective deed can legally be construed as constructive possession of the entire parcel.

The Enduring Necessity of Actual Possession

Despite the benefits of Color of Title, recent court rulings emphasize that it merely provides the legal basis for the claim—it does not satisfy the physical elements required by law.

The claimant must still meet the common-law standard for adverse possession, which requires their use of the property to be:

• 1. Actual Possession (Physical Use): The claimant must physically occupy and use the land in a manner typical for that type of property. Recent cases reinforce that the mere existence of a deed, payment of taxes, or occasional visits is not enough. Evidence must show concrete acts, such as:

  • Enclosure (building a fence or wall).

  • Cultivation or Improvement (farming, clearing land, building structures).

  • Residence or continuous presence.

• 2. Open and Notorious: The use must be so visible and obvious that the true owner is presumed to have notice of the hostile claim. Secretive acts don’t count.

• 3. Hostile (or Adverse): The use must be without the true owner’s permission. Hostile does not mean angry; it means infringing upon the true owner’s rights.

• 4. Exclusive: The adverse possessor must use the land as an owner would, excluding the true owner and the public.

• 5. Continuous: The use must be uninterrupted for the entire statutory period.

The Georgia/Washington Clarification

In states like Georgia, court decisions have explicitly addressed the misconception that Color of Title stands alone. The Georgia Supreme Court clarified that possession under a deed, pursuant to O.C.G.A. § 44-5-164, still requires proof of actual possession for the entire statutory period. The defective deed itself does not transfer possession.

Similarly, even in Washington State, which offers a seven-year timeline for adverse possession with Color of Title and paid taxes (RCW 7.28.070), the statute begins with the requirement for “Every person in actual, open and notorious possession.”

This reiterates the fundamental principle: possession is a physical fact, while Color of Title is a legal presumption of right. The physical fact must precede and accompany the legal presumption.

A Critical Defense for Property Owners

This clarification provides a critical defense tool for property owners:

• Focus on the Physical: When challenging an adverse possession claim, property owners should focus their legal efforts on disproving the physical elements, regardless of the quality of the claimant’s deed.

• Evidence of Interruption: Look for evidence that the claimant’s use was not continuous, not exclusive, or not actual (i.e., merely occasional or seasonal use).

• Permissive Use: If the owner can prove they gave the claimant permission to use the land (verbally or in writing), the “hostile” element is negated, instantly defeating the claim.

The rule protects vigilant owners who keep tabs on their property, underscoring the legal maxim: “The law aids the vigilant, not those who slumber on their rights.”

Conclusion

The recent legal updates on adverse possession reinforce that Color of Title is merely an accelerator and extender of a claim, not the claim itself. The foundation of any successful adverse possession case—even one based on a defective deed—remains the claimant’s ability to prove actual, open, hostile, exclusive, and continuous physical possession of the land for the statutory period. Property owners must arm themselves with this knowledge to effectively defend against claims that rely solely on faulty paperwork. To secure your title, conduct proper due diligence, and strategically defend your property boundaries against adverse claims, contact Lforlaw today to connect with expert real estate attorneys specializing in adverse possession defense and property litigation.

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Sources

1. Georgia Supreme Court: Brownphil, LLC v. Cudjoe, (2025) (Clarifying that a deed alone is insufficient to establish prescriptive title without actual possession).

2. Washington State Legislature: RCW 7.28.070 (Statute setting the requirements for adverse possession under Color of Title, explicitly mandating actual, open and notorious possession).

3. Wex Legal Information Institute (LII): Adverse Possession (Overview of the common law elements required for all adverse possession claims).