October 23, 2012
Professor D. Arden
Tennessee's Adverse Possession Statute
Tennessee Adverse Possession Statute:
Credits: 1819, Tenn. Pub. Acts, c. 28, § 1 , 1895, Tenn. Pub. Acts, c. 38, § 1, Formerly: 1858, Tenn. Pub. Acts § 2763, 2 Tenn. L. Rev. 147 (1923-1924), 1932 Tenn. Pub. Acts, § 8582; § 28-201 Recent: Tenn. Code Ann. § 28-2-101 (West, 2006),
(a) Any person having had, either personally or through those whom that person's claim arises, individually or through whom a person claims, seven (7) years' adverse possession of any lands, tenements, or hereditaments, granted by this state or the state of North Carolina, holding by conveyance, devise, grant, or other assurance of title, purporting to convey an estate in fee, without any claim by action at law or in equity commenced within that time and effectually prosecuted against such person, is vested with a good and indefeasible title in fee to the land described in such person's assurance of title.
(b) No title shall be vested by virtue of such adverse possession, unless such conveyance, devise, grant, or other assurance of title shall have been recorded in the register's office for the county or counties in which the land lies during the full term of said seven (7) years' adverse possession. (Tennessee legislation, 2012)
Underwood Repair Service, Inc. v. Dean, Not Reported in S.W.3d, 2008 WL 2466270 (Tenn.Ct.App., 2008). In this case the following facts were argued: The dispute arose over a strip of land located on the northern side of Underwood Repair Service's property Lot 1 and the southern side of the Deans' property Lot 2. Underwood Repair Service asserted that it owned the disputed strip of land in fee simple, or, in the alternative, through adverse possession. The Deans filed a motion to dismiss both claims, and the trial court granted the motion to dismiss the adverse possession claim, finding Underwood Repair Service failed to allege facts sufficient to support that claim. The motion to dismiss the claim to fee simple ownership was initially denied, but it was then granted without prejudice to allow this appeal. After a thorough review of the record and applicable law, the court, then concluded that the facts alleged in the complaint were sufficient to survive a motion to dismiss. At which time Underwood then filed an appeal with the Tennessee Court of Appeals, at which time the “color of title” ; which in summary is the fact of the person who bought real property was not given the deed right after the sale by the previous owner however is recorded , and it is within the 7 years of the Tennessee statute; Tenn. Code Ann. § 28-2-101 pertaining to the 7 years to which a property owner can claim adverse ownership.
Underwood Repair Service, Inc., v. Billy R. Dean, Peggy L. Dean and Dean, L.L.P. Court of Appeals of Tennessee
Not Reported in S.W.3d, 2008 WL 2466270
September 4, 2007 Session.
Filed June 18, 2008.
September 4, 2007 Session.
In order to properly decide a motion to dismiss for failure to state a claim upon which relief may be granted, the trial court must consider and is limited by the allegations of the complaint. A motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief can be granted is the equivalent of a demurrer under our former common law procedure and thus is a test of the sufficiency of the leading pleading.
Facts of the Case:
Relevant to this case, the Antioch Commercial Planned Urban Development (“P.U.D.”). divided certain commercial land in Antioch into lots. For which William Underwood purchased one of these lots (Lot No. 1) from Jesse Wright. Underwood's company, Underwood Repair Service, subsequently purchased the lot from Underwood (collectively “Underwood”). Billy Dean, Peggy Dean, and Dean, L.L.P....