(a) When a person or those under whom he claims is and has been in possession of any real property, under known and visible lines and boundaries and under color of title, for seven years, no entry shall be made or action sustained against such possessor by a person having any right or title to the same, except during the seven years next after his right or title has descended or accrued, who in default of suing within that time shall be excluded from any claim thereafter made; and such possession, so held, is a perpetual bar against all persons not under disability: Provided, that commissioner's deeds in judicial sales and trustee's deeds under foreclosure shall also constitute color of title.
(b) If
(1) The marking of boundaries on the property by distinctive markings on trees or by the implacement of visible metal or concrete boundary markers in the boundary lines surrounding the property, such markings to be visible to a height of 18 inches above the ground, and
(2) The recording of a map prepared from an actual survey by a surveyor registered under the laws of North Carolina, in the book of maps in the office of the register of deeds in the county where the real property is located, with a certificate attached to said map by which the surveyor certifies that the boundaries as shown by the map are those described in the deed or other title instrument or proceeding from which the survey was made, the surveyor's certificate reciting the book and page or file number of the deed, other title instrument or proceeding from which the survey was made,
then the listing and paying of taxes on the real property marked and for which a survey and map have been certified and recorded as provided in subdivisions (1) and (2) above shall constitute prima facie evidence of possession of real property under known and visible lines and boundaries. Maps recorded prior to October 1, 1973 may be qualified under this statute by the recording of certificates prepared in accordance with subdivision (b)(2) above. Such certificates must contain the book and page number where the map is filed, in addition to the information required by subdivision (b)(2) above, and shall be recorded and indexed in the deed books. When a certificate is filed to qualify such a recorded map, the register of deeds shall make a marginal notation on the map in the following form: "Certificate filed pursuant to G.S. 1-38(b), book______ (enter book where filed), page _____"
(c) Maps recorded prior to October 1, 1973 shall qualify as if they had been certified as herein provided if said maps can be proven to conform to the boundary lines on the ground and to conform to instruments of record conveying the land which is the subject matter of the map, to the person whose name is indicated on said recorded map as the owner thereof. Maps recorded after October 1, 1973 shall comply with the provisions for a certificate as hereinbefore set forth. (C.C.P., s. 20; Code, s. 141; Rev., s. 382; C.S., s. 428; 1963, c. 1132; 1973, c. 250; 1975, c. 207.)
Notes of Decisions
Cited in
86
cases (
6 in the last 5 years), 1944–2025 · leading case:
Foreman v. Sholl, 439 S.E.2d 169 (N.C. Ct. App. 1994).
Foreman v. Sholl, 439 S.E.2d 169 (N.C. Ct. App. 1994).
· cites it 17× “Plaintiffs claim, pursuant to N.C.Gen.Stat. § 1-38 (1983), that they "under known and visible lines and boundaries" have "for more than seven (7) years" "asserted continuous, open, notorious and hostile adverse possession of [the premises in question] under color of title since…”
Pegg v. Jones, 653 S.E.2d 229 (N.C. Ct. App. 2007).
· cites it 4× “N.C. Gen.Stat. § 1-38 (2005). Here, defendant makes no argument that he took the property under color of title, so the provisions of N.”
Merrick v. Peterson, 548 S.E.2d 171 (N.C. Ct. App. 2001).
· cites it 2× “2d 730 (1988); N.C. Gen. Stat. § 1-38 (1999); N.C. Gen. Stat.”
McManus v. Kluttz, 599 S.E.2d 438 (N.C. Ct. App. 2004).
· cites it 3× “In 1973, the General Assembly amended § 1-38 to include subsection (b), which provides that if property boundaries are identified by distinctive markings on trees or by stakes raising eighteen inches above the ground, and if a survey map is recorded in the county registry, “then…”
Honeycutt v. Weaver, 812 S.E.2d 859 (N.C. Ct. App. 2018).
· cites it 4× “Challenges to an individual's possession "under color of title," however, are subject to a 7-year statute of limitations pursuant to N.C. Gen. Stat. § 1-38 (2015). Color of title may be defined to be a writing, upon its face professing to pass title, but which does not do it,…”
Higdon v. Davis, 324 S.E.2d 5 (N.C. Ct. App. 1984).
· cites it 13× “1 — 4 This case presents an issue of first impression; whether one can acquire a prescriptive easement by adverse use for seven years under color of title pursuant to G.S. 1-38. The jury answered this issue in the affirmative and plaintiffs assign as error the trial court’s…”
Woodring v. Swieter, 637 S.E.2d 269 (N.C. Ct. App. 2006).
· cites it 2× “In contrast to the ordinary 20-year period, if a party obtains ownership under color of title, then the period of time for which the party must adversely possess the property is shortened to 7 years.”
Lancaster v. Maple Street Homeowners Ass'n, Inc., 577 S.E.2d 365 (N.C. Ct. App. 2003).
· cites it 4× “In the case sub judice, defendant was required to prove actual, open, hostile, exclusive, and continuous possession of the subject land for twenty years since it had not had possession under color of title for the required seven years.”
Scott Poultry Co. v. Bryan Oil Co., 157 S.E.2d 693 (N.C. 1967).
· cites it 5× “The ten-year statute applies only to cases “not otherwise limited,” and as to actions for recovery of real estate there are two statutes, G.S. 1-38 and G.S. 1-40, which are expressly applicable.”
Duke Energy Progress, Inc. v. Kane, 827 S.E.2d 312 (N.C. Ct. App. 2019).
· cites it 9× “Specifically, defendants argue N.C. Gen. Stat. § 1-38 governs because plaintiff's title is defective-leaving ambiguity as to defendants' right to grow trees at their residences.”
Adams Creek Assocs. v. Davis, 746 S.E.2d 1 (N.C. Ct. App. 2013).
· cites it 6× “N.C. Gen. Stat. § 1-38 governs adverse possession under color of title.”
Beam v. Kerlee, 461 S.E.2d 911 (N.C. Ct. App. 1995).
· cites it 2× “Plaintiffs also claim the trial court should have granted their motion for directed verdict as to defendant’s claim that he acquired title to the land by seven years’ adverse possession with color of title under N.C. Gen. Stat. § 1-38 (1983). We need not consider this issue.”
— N.C. Gen. Stat. § 1-38(a) — 5 cases
Foreman v. Sholl, 439 S.E.2d 169 (N.C. Ct. App. 1994).
“Plaintiffs claim, pursuant to N.C.Gen.Stat. § 1-38 (1983), that they "under known and visible lines and boundaries" have "for more than seven (7) years" "asserted continuous, open, notorious and hostile adverse possession of [the premises in question] under color of title since…”
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