ABSTRACT
This paper examines the concept of ‘play’ (at its simplest, meaning human beings doing things for fun or recreational purposes) in the context of adverse possession law. Specifically, it looks at how adverse possession law in the United States has treated the adverse possessor’s mere (or sole) recreational use of land. This paper makes two arguments: one descriptive and one normative. The descriptive argument is that courts across the United States have historically treated sole recreational use by adverse possessors of disputed land inconsistently. The normative argument is that courts should give more deference and weight to ‘play’ – or recreational use of land – when adjudicating adverse possession cases. This would also bring adverse possession law and jurisprudence more in alignment with the predominant existing justifications for the adverse possession doctrine as a whole. While the concept of ‘play’ has made inroads in other areas of legal scholarship, such as scholars arguing for a constitutional right to play sports or using online gaming to make an argument for a recognized fundamental right of play in American jurisprudence or arguing for the importance of ‘play’ in the American judiciary’s protection of vulnerable minorities, it has regrettably not made much inroads in the area of property law. Thus, at its most macroscopic level, this paper also hopes to correct this.
Ho, Norman, Play and Adverse Possession (February 2024). Northwestern University Law Review Online (forthcoming 2024).
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