Recorded Deed Insufficient Alone to Establish Constructive Possession for Adverse Possession Under Color of Title

Introduction

This commentary examines the Supreme Court of Georgia’s decision in Brownphil, LLC v. Cudjoe (S24G0864), decided May 13, 2025. The case arose from competing claims to an undeveloped lot in Bibb County, Georgia. Appellant Brownphil, LLC (“Brownphil”) asserted ownership by virtue of an unbroken chain of title and a valid deed. Appellee Peter Kofi Amihere Cudjoe (“Cudjoe”) conceded that his deed was defective but maintained he held title through adverse possession under color of title. The central legal question was whether mere possession of a recorded (albeit defective) deed satisfies both the notice and the land‐possession requirements for adverse possession under color of title.

Summary of the Judgment

The Supreme Court of Georgia unanimously held that a recorded deed, standing alone, cannot establish the possession element required for adverse possession under color of title. While such a deed provides notice of the claim, it does not by itself demonstrate the actual or constructive possession of land. Because the Court of Appeals had relied solely on the recorded deed to find constructive possession, that decision was vacated, and the case was remanded for further proceedings to determine whether Cudjoe in fact possessed any portion of the Property.

Analysis

Precedents Cited

Poore v. Poore (210 Ga. 371, 372 (1954)): Held that a recorded deed gives notice of the deed‐holder’s claim of ownership.
Warlick v. Rome Loan & Finance Co. (194 Ga. 419, 421–22 (1942)): Defined “color of title” as a writing that purports to pass title but is defective.
Herrington v. Church of the Lord Jesus Christ (222 Ga. 542, 546 (1966)): Affirmed that “written evidence of title” equals color of title under OCGA § 44-5-164.
Georgia Power Co. v. Irvin (267 Ga. 760, 765 (1997)): Further defined “color of title” in modern context.
Stallings v. Britt (204 Ga. 250, 255 (1948)): Equated “written evidence of title” with “color of title.”
Wooding v. Blanton (112 Ga. 509 (1900)): Early usage of “possession under color of title.”
Gordon v. Georgia Kraft Co. (217 Ga. 500, 508 (1962)): Established that constructive possession of an entire tract requires actual possession of some part plus color of title.
McBee v. Aspire at West Midtown Apartments, L.P. (302 Ga. 662, 666 (2017)): Described adverse possession as "the type of possession that can ripen into title by prescription."
Yundt v. Davison (186 Ga. 179 (1938)): Declared that "the foundation of prescription is possession."

Statutory Framework

Under Georgia law:

OCGA § 44-5-160: Recognizes title by prescription after 20 years of adverse possession.
OCGA § 44-5-163: Sets the basic 20-year period.
OCGA § 44-5-164: Creates a seven-year period if possession is under “written evidence of title” (color of title).
OCGA § 44-5-161(a): Requires that possession be (1) in the possessor’s right, (2) non‐fraudulent, (3) public, continuous, exclusive, uninterrupted, and peaceable, and (4) accompanied by a claim of right.
OCGA § 44-5-165: Defines actual possession by enclosure, cultivation, or use sufficiently notorious to alert adverse claimants.
OCGA § 44-5-166: Defines constructive possession where a deed covers a tract and the holder actually possesses a part, extending possession to the whole.
OCGA § 44-5-167: Provides that possession under a duly recorded deed extends to all contiguous property embraced by that deed.

Legal Reasoning

The Court’s reasoning unfolded in these steps:

Adverse possession under color of title requires both color of title (the defective deed) and possession of the property.
Statutes distinguish between actual possession (OCGA § 44-5-165) and constructive possession (OCGA § 44-5-166). Constructive possession presupposes actual possession of some part of the land.
The Court of Appeals had held, relying on Gordon and Poore, that recordation alone provided both notice and notoriety needed for constructive possession. But Gordon requires actual possession of a portion before extending possession to the whole.
Therefore, possession of a recorded deed—though sufficient to provide notice—cannot by itself satisfy the requirement that the possessor actually (or constructively, via statutory construction) occupies the land.
Because the Court of Appeals did not analyze whether Cudjoe ever actually possessed any part of the property, its decision was reversed and remanded for further factual proceedings.

Impact

This ruling clarifies that in Georgia:

Claimants seeking title by prescription under OCGA § 44-5-164 must prove both color of title and actual possession of some portion of the land.
Recorded but defective deeds will not by themselves ripen into title via adverse possession; adverse possessors must demonstrate visible acts of ownership or control on the ground.
Future boundary disputes and quiet‐title actions will require more detailed factual proofs regarding use, cultivation, enclosure, or other indicators of actual occupancy.
Title examiners and land practitioners must carefully assess possession evidence in cases involving color of title claims.

Complex Concepts Simplified

Color of Title: A document (often a defective deed) that appears to convey title but is legally flawed. It can shorten the 20-year period to seven years for adverse possession if accompanied by possession.
Adverse Possession: A method of acquiring legal title to property by openly occupying and using it without permission for a statutory period, meeting statutory elements.
Actual Possession: Physical acts such as fencing, cultivation, or residence that are visible and notorious.
Constructive Possession: A legal fiction extending actual possession of part of a tract to the whole tract when the possessor holds color of title to the entire tract.
Notice and Notoriety: Notice arises from recordation of deeds; notoriety demands acts on the land that would inform an adverse claimant of the possessor’s claim.

Conclusion

Brownphil, LLC v. Cudjoe confirms that in Georgia adverse possession under color of title demands both a defective written instrument (the color of title) and proof of actual possession of at least part of the land. Recordation alone is insufficient to satisfy the possession requirement. This decision reinforces the rigorous standards for prescriptive title and provides clear guidance for courts, litigants, and title insurers in future boundary and ownership disputes.