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Eliminating 1000 court battles with ONE stroke of the Legislative Pen!
Matt Williams Matthew D. Williams & Associates LLC
HOW TO CLEANUP YOUR RIGHT OF WAY ISSUES Georgia House Bill 1283!
Matthew D. Williams Attorney at Law Matthew D. LLC Williams & Associates,
My Para-Beagle, Bruiser
The Problem The Clock has been TICKING!
Fence Problem Illustration
Fence Problem vs. No Fence Problem
Title by Prescription A right to property Acquired by possessor Over a period of time
Adverse Possession For possession to be the foundation for prescriptive title, it must be: 1. 2. 3. 4. 5. 6. 7.
In the right of the possessor Public Continuous Exclusive Uninterrupted Peaceable Accompanied by a claim of right
Permissive possession cannot be the foundation of adverse possession until an adverse claim is made and actual notice to the other party.
Possession of real property under adverse possession for a period of 20 years will confer good title by prescription to the property against everyone …including the record title holder.
Possession of real property by adverse possession under written evidence of title for a period of 7 years will confer good title by prescription to the property against everyone … including the record title holder.
Something as innocent as an erroneous survey or plat can be the origin of color of title.
This problem includes surveys, plats and legal descriptions drawn to include railroad right-of-way.
Actual possession of land may be shown by…
Enclosure,
Cultivation,
or any use or occupation of the land so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another.
Possession under a recorded deed will extend to all contiguous property encompassed by the deed.
Other types of rights, such as a right of access, or a right of way, may also be acquired by prescription.
Further complicating issues: Railroad deed was never recorded Railroad deed has no specified width for right-of-way Railroad never obtained a deed, or it is outside the chain of title Predecessor railroad previously ignored encroachments Innocent, but inadequate, legal descriptions for predecessor owners
Time to Fight Back!
An outside the box solution: Keep litigating or take away their claims?
Change the law through legislation.
Georgia HB 1283
The General Assembly finds that the railroads and their rights of way in Georgia:
(1) Are essential to the continued viability of this state; (2) Are valuable resources which must be preserved and protected; (3) Are essential for the economic growth and development of this state; (4) Provide a necessary means of transporting raw materials, agricultural products, other finished products, and consumer goods and are also essential for the safe passage of hazardous materials; (5) Relieve congestion on the highways and keep dangerous products and materials off our highways; (6) Are vital for national defense and national security; and (7) Provide the most energy efficient means of transportation through this state, thus minimizing air pollution and fuel consumption.
More good stuff…. The purpose of this Act is to protect the rights of way of railroads from loss by claims of adverse possession or other claims by prescription and to recognize the dimensions of these rights of way as they were identified and defined nearly 100 years ago.
Section 2 O.C.G.A. §24-4-23.2—the Georgia evidence code:
"In any action to establish a right, title, or interest in or to real property that is a part of a railroad right of way, including a right of ingress or egress, where such action is based upon occupancy of the railroad right of way by a person or entity other than the railroad corporation or railroad company, there shall be a presumption that any such occupancy of the railroad right of way is with the permission of the railroad corporation or railroad company. Such presumption may be rebutted."
Old O.C.G.A. §44-5-165 provides: "Actual possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another ."
Section 4 adds: “As to any claim which is not vested under this chapter prior to July 1, 2008, no party shall attempt to establish possession of lands for purposes of this article for any lands depicted within the applicable tract identified on the official map of any railroad… unless such party establishes that such occupancy interferes with the operations of such railroad… ”
The points: Party claiming possession Not Vested prior to July 1, 2008 Bears burden of proof That occupancy Must interfere with railroad operations
“Any court of this state shall take judicial notice of the information set forth in any such official map properly filed and recorded….”
Section 5 O.C.G.A. §44-5-166:
“Constructive possession of lands exists where a person who has paper title to a tract of land is in actual possession of only a part of such tract. In such case, his or her possession shall be construed to extend to the boundary of such tract. With respect to a railroad corporation or railroad company, construction of the road bed and track on the railroad right of way shall constitute actual possession and occupancy of all lands depicted within the applicable tract identified on the official map of the railroad…”
Adverse possession requires exclusive possession by the claimant of the parcel in dispute. Compare: “construction of the road bed and track on the railroad right of way shall constitute actual possession and occupancy of all lands depicted within the applicable tract identified on the official map of the railroad…”
Section 6 O.C.G.A. § 44-5-167: "Possession under a duly recorded deed shall be construed to extend to all the contiguous property embraced in such deed. To the extent that any such property is bounded on one or more sides by a railroad, and the description of the property contained in such deed makes reference to the railroad or the railroad right of way as a boundary for such property, such reference shall be construed to mean that the boundary line is located at the edge of the tract depicted on the official map of the railroad… "
Common legal description: “to and along the railroad…”
No longer can the scum sucking lawyer for a property owner rely on an old deed to dispute the location of the boundary line or the width of the right of way.
Section 7 O.C.G.A. § 46-8-100—railroad powers:
“To acquire, purchase, hold, and use all such real estate and other property as may be necessary for the construction and maintenance of said road and of the stations, wharves, docks, terminal facilities, and all other accommodations necessary to accomplish the object of the corporation; and to condemn, lease, or buy any land necessary for its use; provided, however, that to the extent an issue arises over the dimensions of any such acquisition by a railroad corporation or railroad company which occurred prior to 1913, such dimensions shall be determined by reference to the documents evidencing any such transaction and by examining the official map of the railroad…”
“Of sufficient width for railroad purposes…” is no longer a problem.
O.C.G.A. § 46-8-100 continues: “…such depictions contained on such official railroad map shall be conclusive as to the dimensions of any acquisition as of the date of such railroad map…”
The main problems: Undocumented encroachments Claims under color of title Boundary line disputes Right of way without deeds Undocumented private crossings
What you have to do:
“provided, further, that each railroad corporation and railroad company shall file and record such official map of the railroad with the superior court for the county in which such land depicted on such official railroad map is situated.”
The moral of the story is…
“Walk softly and carry a big stick!”
For questions or assistance, contact Matt Williams or Bruiser Phone: (770) 815-9331 Email: [email protected]
Matt Williams Matthew D. Williams & Associates LLC
HOW TO CLEANUP YOUR RIGHT OF WAY ISSUES Georgia House Bill 1283!
Matthew D. Williams Attorney at Law Matthew D. LLC Williams & Associates,
My Para-Beagle, Bruiser
The Problem The Clock has been TICKING!
Fence Problem Illustration
Fence Problem vs. No Fence Problem
Title by Prescription A right to property Acquired by possessor Over a period of time
Adverse Possession For possession to be the foundation for prescriptive title, it must be: 1. 2. 3. 4. 5. 6. 7.
In the right of the possessor Public Continuous Exclusive Uninterrupted Peaceable Accompanied by a claim of right
Permissive possession cannot be the foundation of adverse possession until an adverse claim is made and actual notice to the other party.
Possession of real property under adverse possession for a period of 20 years will confer good title by prescription to the property against everyone …including the record title holder.
Possession of real property by adverse possession under written evidence of title for a period of 7 years will confer good title by prescription to the property against everyone … including the record title holder.
Something as innocent as an erroneous survey or plat can be the origin of color of title.
This problem includes surveys, plats and legal descriptions drawn to include railroad right-of-way.
Actual possession of land may be shown by…
Enclosure,
Cultivation,
or any use or occupation of the land so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another.
Possession under a recorded deed will extend to all contiguous property encompassed by the deed.
Other types of rights, such as a right of access, or a right of way, may also be acquired by prescription.
Further complicating issues: Railroad deed was never recorded Railroad deed has no specified width for right-of-way Railroad never obtained a deed, or it is outside the chain of title Predecessor railroad previously ignored encroachments Innocent, but inadequate, legal descriptions for predecessor owners
Time to Fight Back!
An outside the box solution: Keep litigating or take away their claims?
Change the law through legislation.
Georgia HB 1283
The General Assembly finds that the railroads and their rights of way in Georgia:
(1) Are essential to the continued viability of this state; (2) Are valuable resources which must be preserved and protected; (3) Are essential for the economic growth and development of this state; (4) Provide a necessary means of transporting raw materials, agricultural products, other finished products, and consumer goods and are also essential for the safe passage of hazardous materials; (5) Relieve congestion on the highways and keep dangerous products and materials off our highways; (6) Are vital for national defense and national security; and (7) Provide the most energy efficient means of transportation through this state, thus minimizing air pollution and fuel consumption.
More good stuff…. The purpose of this Act is to protect the rights of way of railroads from loss by claims of adverse possession or other claims by prescription and to recognize the dimensions of these rights of way as they were identified and defined nearly 100 years ago.
Section 2 O.C.G.A. §24-4-23.2—the Georgia evidence code:
"In any action to establish a right, title, or interest in or to real property that is a part of a railroad right of way, including a right of ingress or egress, where such action is based upon occupancy of the railroad right of way by a person or entity other than the railroad corporation or railroad company, there shall be a presumption that any such occupancy of the railroad right of way is with the permission of the railroad corporation or railroad company. Such presumption may be rebutted."
Old O.C.G.A. §44-5-165 provides: "Actual possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another ."
Section 4 adds: “As to any claim which is not vested under this chapter prior to July 1, 2008, no party shall attempt to establish possession of lands for purposes of this article for any lands depicted within the applicable tract identified on the official map of any railroad… unless such party establishes that such occupancy interferes with the operations of such railroad… ”
The points: Party claiming possession Not Vested prior to July 1, 2008 Bears burden of proof That occupancy Must interfere with railroad operations
“Any court of this state shall take judicial notice of the information set forth in any such official map properly filed and recorded….”
Section 5 O.C.G.A. §44-5-166:
“Constructive possession of lands exists where a person who has paper title to a tract of land is in actual possession of only a part of such tract. In such case, his or her possession shall be construed to extend to the boundary of such tract. With respect to a railroad corporation or railroad company, construction of the road bed and track on the railroad right of way shall constitute actual possession and occupancy of all lands depicted within the applicable tract identified on the official map of the railroad…”
Adverse possession requires exclusive possession by the claimant of the parcel in dispute. Compare: “construction of the road bed and track on the railroad right of way shall constitute actual possession and occupancy of all lands depicted within the applicable tract identified on the official map of the railroad…”
Section 6 O.C.G.A. § 44-5-167: "Possession under a duly recorded deed shall be construed to extend to all the contiguous property embraced in such deed. To the extent that any such property is bounded on one or more sides by a railroad, and the description of the property contained in such deed makes reference to the railroad or the railroad right of way as a boundary for such property, such reference shall be construed to mean that the boundary line is located at the edge of the tract depicted on the official map of the railroad… "
Common legal description: “to and along the railroad…”
No longer can the scum sucking lawyer for a property owner rely on an old deed to dispute the location of the boundary line or the width of the right of way.
Section 7 O.C.G.A. § 46-8-100—railroad powers:
“To acquire, purchase, hold, and use all such real estate and other property as may be necessary for the construction and maintenance of said road and of the stations, wharves, docks, terminal facilities, and all other accommodations necessary to accomplish the object of the corporation; and to condemn, lease, or buy any land necessary for its use; provided, however, that to the extent an issue arises over the dimensions of any such acquisition by a railroad corporation or railroad company which occurred prior to 1913, such dimensions shall be determined by reference to the documents evidencing any such transaction and by examining the official map of the railroad…”
“Of sufficient width for railroad purposes…” is no longer a problem.
O.C.G.A. § 46-8-100 continues: “…such depictions contained on such official railroad map shall be conclusive as to the dimensions of any acquisition as of the date of such railroad map…”
The main problems: Undocumented encroachments Claims under color of title Boundary line disputes Right of way without deeds Undocumented private crossings
What you have to do:
“provided, further, that each railroad corporation and railroad company shall file and record such official map of the railroad with the superior court for the county in which such land depicted on such official railroad map is situated.”
The moral of the story is…
“Walk softly and carry a big stick!”
For questions or assistance, contact Matt Williams or Bruiser Phone: (770) 815-9331 Email: [email protected]
