Nadav Shoked, ‘Who Needs Adverse Possession?’

Adverse possession is one of property law’s most central doctrines. Yet, this Article contends, the need it answers has been largely misunderstood. Adverse possession’s doctrinal effects are clear – and stark: when its requirements are met, an owner loses her land to an invader. To explain a doctrine instituting such a radical result, scholars resort to property law’s major philosophical theories. These theories, they argue, at times demand that an owner lose her land to another person who is more committed to that land. The problem with these prevailing justifications of adverse possession, this Article shows, is that they imagine a very specific case of adverse possession: a squatter putting invaded land to a meaningful use. In reality, however, very few adverse possession cases nowadays involve homesteading squatters. Instead, most consist of neighbors bickering over the boundary separating their lots. Thus, adverse possession now functions as a tool for adjusting boundaries, often to the tune of a mere few inches or feet …

Nadav Shoked, Who Needs Adverse Possession?, 89 Fordham Law Review 2639 (2021).

First posted 2021-06-22 13:00:41

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