The dispute in this case arose from a strip of land along the boundary between two residential parcels in Moore County, North Carolina. The plaintiffs, claiming ownership of the strip asserted that they and their predecessors had acquired title to the strip through adverse possession, either in their own right or by tacking their period of use to that of their predecessors and initiated an action to quiet title and recover possession. The defendants, adjoining owners, argued that the plaintiffs failed to demonstrate the statutory period of possession required for a claim of adverse possession, specifically arguing that the plaintiffs lacked the privity necessary to "tack" subsequent adverse possession periods onto one another.

The trial court granted summary judgment in favor of the defendants, holding that the plaintiffs' adverse possession claim failed as a matter of law because they could not tack their use to prior owners absent privity, and no such privity existed. The plaintiffs appealed and a divided panel of the Court of Appeals, applying de novo review of summary judgment, affirmed the trial court's decision.

The opinion reaffirms that to establish title by adverse possession without color of title in North Carolina, a claimant must show actual, open, notorious, exclusive, hostile, and continuous possession of the land for at least 20 years. N.C. Gen. Stat. § 1-40; Oliver v. Ernul, 277 N.C. 591, 598, 178 S.E.2d 393 (1971). Where a claimant has color of title, a deed or other writing that purports to convey the land, only seven years of possession is required. N.C. Gen. Stat. § 1-38; Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889). But color of title is applicable only if the description in the instrument actually includes the disputed property. Cole v. Bonaparte's Retreat, Inc., 68 N.C. App. 222, 225, 314 S.E.2d 385 (1984).

Where a single possessor cannot meet the prescriptive period alone, tacking possession onto that of a predecessor is recognized, but only if there is privity between the successive possessors. Dickinson v. Pake, 284 N.C. 576, 583, 201 S.E.2d 897 (1974) ("It is essential to the tacking of successive possessions that there be privity between the occupants."). Privity may be established in two ways: privity of estate, where a deed, will, or other instrument connects the title interests. But as the Court emphasized in Cole, 68 N.C. App. at 225, "privity through a deed does not extend beyond the property described therein." Thus, if the strip lies outside the metes and bounds of the deed description, the deed does not create privity for that area. Second, privity of possession, where there is a voluntary transfer of actual possession of the land in question, even absent a conveyance by deed. As the Court noted in Dickinson, 284 N.C. at 584, privity of possession may arise from a consensual handoff, such as one owner physically delivering possession of a fenced yard to a successor.

The majority of the Court in this opinion held that North Carolina, while recognizing the doctrine of privity of possession, has consistently required privity of estate for the purpose of tacking and has rejected the majority rule that permits successive possessions to be aggregated without a connecting link. See Lackey v. City of Burlington, 281 N.C. App. 1, 5, 867 S.E.2d 457 (2022).

In this matter, the defendants argued that their and their predecessors' continuous use of the strip should suffice, even if no formal privity of estate existed. The Court rejected this argument outright, reaffirming that North Carolina adheres to the minority rule requiring privity. Citing Dickinson v. Pake, the Court reiterated: "Without privity, successive adverse possessions cannot be tacked together to ripen title." Dickinson, 284 N.C. at 583. Thus, mere sequential occupancy of the strip, however continuous in fact, was insufficient absent proof of some consensual transfer of possession.

The Court in this opinion carefully distinguished between privity of estate and privity of possession. Because the disputed strip was outside the deed descriptions, the chain of title documents did not themselves create privity for purposes of tacking. As the Court explained in Cole, 68 N.C. App. at 225, and reiterated in Lackey, 281 N.C. App. at 5, "[a] grantee may not tack on his grantor's adverse possession of land lying outside the boundaries described in the deed." Nevertheless, the Court emphasized that privity could arise from voluntary transfer of possession of the disputed area. Citing Dickinson, 284 N.C. at 584, the Court noted that if the defendants' predecessors in title had delivered possession of the fenced yard and represented the boundary as including the strip, this could establish privity sufficient to tack. Whether such facts existed, however, was for a jury to decide.

The dissenting judge contended summary judgment was improper because several elements of adverse possession remained in dispute:

• Privity: Affidavits and deposition testimony suggested that earlier owners may have pointed out the fence line as the property boundary and delivered possession accordingly, creating privity of possession.
• Continuity: Evidence showed successive owners maintained, mowed, and fenced the strip over decades. The plaintiffs argued there were interruptions and permissive uses.
• Exclusivity and Hostility: The record contained conflicting evidence about whether use of the strip was permissive or adverse. Under Price v. Tomrich Corp., 275 N.C. 385, 392, 167 S.E.2d 766 (1969), hostility is assessed objectively and depends on whether the possessor claimed the land as his own, not on subjective intent.
• Length of Possession: Whether the defendants could combine their possession with that of their predecessors to satisfy the twenty-year statutory period turned on contested issues of privity and continuity.

In North Carolina, an appeal as of right to the Supreme Court based on a dissenting opinion in the Court of Appeals was previously available, but this route was eliminated by the Legislature for cases filed on or after October 3, 2023. As this case was apparently filed prior to that date, a Supreme Court review may be anticipated. The dissenting opinion in this case addresses the issue of privity of possession making a compelling argument that the majority's conclusion was not supported by precedent. The majority concluded that North Carolina remains firmly in the minority rule camp: no tacking without privity of estate. Dickinson v. Pake, 284 N.C. at 583. If this decision stands, practitioners asserting adverse possession must be prepared to prove a linking relationship between successive possessors by the description in their chain of title. Privity of estate through a deed cannot extend beyond the property described. Cole, 68 N.C. App. at 225; Lackey, 281 N.C. App. at 5. Thus, if the disputed strip lies outside the legal description, the deed itself will not suffice to tack possession.

Closing lawyers should beware of "fence line" boundaries that deviate from deed descriptions. Boundary line agreements or corrective deeds can clarify ownership and avoid decades-later litigation. Without such instruments, successors may be forced to rely on adverse possession and the complex doctrine of privity.