Should Adverse Possession Be Eliminated?

August 17th, 2012

This past week, I opened my Property 2 Class by teaching adverse possession. Roughly stated, adverse possession allows a trespasser who openly, notoriously, and continuously squats on a plot of land for a period of time to gain title to the land. This is a very uncomfortable doctrine at first blush, but it makes sense for a whole host of reasons. The squatter is using the land more efficiently than the absent owner, so there is economic efficiency. There are also reliance interests for the squatter.

Though, it seems, that at least one State Senator in Pennsylvania wants to do away with adverse possession.

“It’s just plain wrong to legally seize someone’s property in cases where the owner did not knowingly relinquish their property rights, and has continued to meet their tax obligations,” Kasunic said. “My bill would do away with this antiquated law that rewards this legalized brand of theft.” . . .

“I see no need or justification for allowing someone to defiantly trespass, act like they own one’s land — and then somehow have the force of our laws reward them,” Kasunic said. “The practice smacks of being sneaky, dishonest and an affront to property rights.”

Kasnuic sought to introduce a bill (which seems to have gone nowehre) that would have “repeal[ed] the state’s common law doctrines that allow for the use or title to land through adverse possession or easement by prescription.”

Richard Epstein, who only grudgingly accepts adverse possession, would agree.

Though, in a Lockean sense, is it an affront to property rights? In terms of mixing labor, the absent owner is mixing nothing. The squatter, openly using the land, and presumably improving it, has a stronger claim to title. No?



H/T Zak Slayback