You may remember the typical requirements for making an adverse possession claim from law school. Whatever acronym your professor used, it boils down to the open, exclusive, continuous, and hostile possession of someone else’s land. The Tennessee Supreme Court recently delivered a big ruling changing when, under Tennessee law, a person has “hostile” possession of another person’s property. This ruling breaks with other states on the issue and may make it more difficult for landowners to establish adverse possession in court.

In Mathes v. 99 Hermitage, LLC, the court held that a claimant to property in Nashville did not have adverse (or hostile) possession of it, and thus couldn’t establish adverse possession.[1] Mr. Eads purchased a commercial property in 1986 and received the deed a few years later after paying off the purchase price. Although he failed to record his deed, Mr. Eads possessed and leased the property for the following two decades.[2]

Mr. Eads ran into trouble, however, when someone else’s creditors came calling. Because Mr. Eads never recorded his deed, the original seller, Mr. Whiteaker, retained record title of the property.[3] And one of Mr. Whiteaker’s creditors obtained a judgment lien against the Nashville property and forced it to go up for sale. Faced with losing the land, Mr. Eads brought an action arguing that he had taken ownership of the property by adverse possession.[4]

On appeal, the Tennessee Supreme Court faced only a single question: whether a person who receives a valid deed to property but fails to record it satisfies the adversity requirement for adverse possession. The court’s answer, with a lone dissenter, was no. Writing for the court, Justice Sarah Campbell began by observing that the court’s long history of adverse possession cases imposes a specific rule.[5] To prove the element of adversity, a land claimant must show either a conflict of title or a controversy regarding the right of possession. A person holding an unrecorded deed validly conveyed by the prior owner cannot, at least against the prior owner, show a conflict of title or controversy over the right of possession.[6]

The court recognized that this rule ran up against City National Bank & Trust Co. of Miami v. City of Knoxville—a case in which it previously held that a person holding an unrecorded deed satisfied the adversity requirement despite no such conflict or controversy existing.[7] But because City of Knoxville didn’t analyze the conflict or controversy rule and seemed to conflict with a long line of other cases, the court chose to overrule it.[8]

The court then applied the adversity rule to this case. Because Mr. Whiteaker had given Mr. Eads a valid deed conveying the property, no conflict of title existed between them.[9] For the same reason, no controversy existed between them as to the right to possess the property.[10] Mr. Eads’s possession of the land would have conflicted with Mr. Whiteaker’s record title but for their valid deed. The court thus announced a bright-line rule: When a grantor conveys valid title to a grantee but the grantee fails to record the deed, the grantee's possession of the property cannot be adverse against the grantor.[11]

This rule, the court noted, breaks with the rule applied in some other states, including Alabama and North Carolina.[12] These states’ high courts have held that the holder of an unrecorded deed may possess their property adversely to the prior owner.[13]

The Tennessee Supreme Court’s lone dissenter, Chief Justice Holly Kirby, would have adopted this rule and held that Mr. Eads met the adversity requirement in this case. In her view, because Mr. Whiteaker retained record title to the land, he looked like its owner to the rest of the world.[14] Mr. Eads’s possession of the property conflicted with Mr. Whiteaker’s record title, regardless of the deed between them, because it would have hindered Mr. Whiteaker’s ability to transfer his record interest to someone else.[15]

This conflict was all the dissent needed to find hostile possession. To her, adverse possession ensures that someone who possesses land for many years, despite having imperfect title, will not have that land taken from them.[16] The court’s new rule thus undermines the basic purpose of the doctrine. But the majority responded that Justice Kirby’s proposed holding would undermine the purpose of Tennessee’s recording statutes in promoting notice of who owns a particular property.[17] And in any event, according to the court, the dissent’s position would conflict with a long line of past cases.[18]

Absent unusual circumstances, then, holders of a valid but unrecorded deed to Tennessee land can no longer claim that they possess the land adversely against their grantor. The court’s decision in Mathes will likely keep some future adverse possession claims out of court. And it may also remind landowners in Tennessee to brush off their deeds and ensure that they’re recorded.

[1] 696 S.W.3d 542, 546 (Tenn. 2024).

[2] Id. at 549.

[3] Id.

[4] Id. at 550.

[5] Id. at 553–55. See Story v. Saunders, 27 Tenn. (8 Hum.) 663, 669–70 (1848) (suggesting that hostile possession requires a conflict of title or controversy over the right to possession); Byrd v. Phillips, 111 S.W. 1109, 1112 (1908) (stating that a conflict of title is “essential to the defense” of adverse possession).

[6] Mathes, 696 S.W.3d at 552–53.

[7] 11 S.W.2d 583 (1928).

[8] Mathes, 696 S.W.3d at 558.

[9] Id. at 559.

[10] Id.

[11] Id. at 560.

[12] Id. at 561.

[13] See Winters v. Powell, 61 So. 96, 99 (Ala. 1912); Sessoms v. McDonald, 75 S.E.2d 904, 907 (N.C. 1953).

[14] Mathes, 696 S.W.3d at 564 (Kirby, C.J., dissenting).

[15] Id. at 565.

[16] Id. at 570.

[17] Id. at 561–62.

[18] Id. at 562.

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