Who Needs Adverse Possession?

By Nadav Shoked

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. For this actual, as opposed to imagined, role of adverse possession, justifications grounded in philosophical theories focused on the abstract concept of property are not fully satisfactory. The justification for a doctrine performing such a mundane function must be more practical. Adverse possession must be compared, and shown to be superior, to alternative tools that can perform the same boundary-drawing function. This Article conducts such a comparison. It explains that American law retains adverse possession because, contrary to popular belief, our formal system of property boundaries—which uses map lines—is unreliable, indeed unworkable. The choice to retain this dysfunctional boundary system, some of whose imperfections necessitate adverse possession, is probably not socially efficient, but it serves the interests of a powerful industry bred by the existing system: the title insurance industry. This Article thus supplements the somewhat inapposite philosophical accounts of adverse possession’s function in American law with a practical one. It then stresses the normatively troubling aspects of that function. Based on this critique, this Article further advocates for judicial and legislative reforms to better reflect and regulate adverse possession’s true function in current American law.