February 2015 Bar Bulletin
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February 2015 Bar Bulletin

Adverse Possession Is Mostly Right – Let's Correct Its Slight Wrong

By Robert WM Zierman


It is wrong for landowners to take the land of their neighbors. This is the basic premise propelling the follow-on claim that adverse possession is bad law. The reality is adverse possession, albeit slightly flawed, is very good law.

As a result, instead of the doctrine's wholesale elimination, adverse possession needs a slight fix. Below, all the commotion and consequences regarding adverse possession's proposed elimination are explored. Afterward, I present the necessary correction to the flaw of this otherwise completely valid body of law.

At bedrock, adverse possession is a statute of limitations. As a result, its purpose is to eliminate stale claims. As we are all aware, this simply means after a set period of time people are barred from bringing an action.

Obviously, a real property owner must at some point be able essentially to say, "I'm sorry if way back when you had an ownership interest in my real property. However, I have been the owner of this property for a sufficient period of time and I have used this property in a manner which to you, me, and for that matter the rest of the world, is sufficient for me to not be subject to legal attack. So, please don't even think about trying to take it away from me now."

That in a nutshell - without mechanistically rambling off its legal elements - is adverse possession. It is mission critical for record holders of title and the lawyers who advise them to understand this. Whereas these record title holders don't know it - just as much as any other real property owner - they need the law of adverse possession.

This is because without a mechanism like adverse possession in place, all owners of real property, far from having problems concerning a few blades of grass or grains sand on the beach at the edges of their real property, would own real property that would be subject to legal attack in perpetuity.

If we completely threw out adverse possession, at minimum there would be a huge spike in the cost of title insurance. Yet at worst, it may extinguish that industry altogether. Without title insurance, mortgage lenders would have to require much, much higher levels of equity before even starting to think about lending. This would cause demand to freefall.

There would also be problems on the supply side though. As a result of "price stickiness" - whereby people generally determine not to part with property, real or otherwise, for less than their buy-in costs - listed prices would remain high. Essentially, listed and actual prices would be completely disconnected.

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