ABSTRACT
It is common for property theorists to use the examples of trespass and nuisance to support their arguments. As useful as an emphasis on these property torts may be for elucidating key property rights, it is not clear how other property doctrines fit with the conclusions theorists have drawn from their discussions of these torts. Other property doctrines are often absent from theoretical accounts of property. My focus in this paper is on adverse possession and what it can tell us about property.
Adverse possession is a controversial doctrine because of how it can turn a wrong, namely what is an extended trespass over another’s land, into a legal entitlement. Some jurisdictions have outright abolished adverse possession or limited it to good-faith adverse possessors. Yet for some jurisdictions such abolition has been premature and the doctrine has been reintroduced suggesting that, for all the controversy surrounding it, adverse possession is surprisingly durable.
In this paper, I argue that adverse possession poses a challenge to the dominant schools of property theory and, more importantly, tells us something important about property. In particular, adverse possession reveals the social nature of property, the role of time in property rights, and the contingency of property.
Hamill, Sarah E, Enduring Trespass: What Adverse Possession Reveals About Property (March 30, 2020). (2020) 96 Supreme Court Law Review.
First posted 2021-01-07 08:40:04
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