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Proctor v. Heirs of Susie Jernigan

Actual notice of an adverse possession claim is required only when the claim is based on permissive possession of the property.

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Paul and Jo Proctor brought this quiet title action based on a claim of adverse possession under color of title. This Court granted the discretionary application to address whether actual notice of an adverse possession claim is necessary when there is no evidence of permissive possession. Applying the plain meaning of the statutory language in OCGA § 44-5-161, we hold that the requirement of actual notice applies only to adverse claims based on the claimant’s possession by permission. Because the trial court correctly denied the Proctor’s motion for summary judgment, we affirm and remand for an evidentiary hearing.

1. OCGA § 44-5-161 a states the elements for adverse possession, whether for twenty years or seven years under color of title.1 Possession must be accompanied by a bona fide claim of right, must not have originated in fraud, and must be “public, continuous, exclusive, uninterrupted, and peaceable.”2

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