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Tuesday, November 29, 2005

Adverse Possession as a Human Rights Violation?

My colleague, Frank Snyder, passes on the news that the European Court of Human Rights has ruled that -- at least in some circumstances -- the United Kingdom's law of adverse possession violates the European Convention on Human Rights.  Here is a press release. 

The facts of the case, J A Pye (Oxford) Ltd. v. United Kingdom, are complicated but, in a nutshell, the applicants alleged that the United Kingdom law on adverse possession, by which they lost land with development potential to a "neighbour," operated in violation of Article 1 of Protocol No. 1 in their case.   According to the press release:

The Court took the view that, with one or two limited exceptions, the uncertainties which sometimes arose in relation to the ownership of land were very unlikely to arise in the context of a system of land ownership involving compulsory registration (as in the applicants' case), where the owner of the land was readily identifiable. In the days before registration became the norm, a result whereby an adverse possessor of land was rewarded by obtaining title could be justified as avoiding protracted uncertainty as to where the title to land lay; where land was registered, it was difficult to see any justification for a legal rule which led to such an unjust result. . . .

The Court accepted that the limitation period of 12 years was relatively long and that the law of adverse possession was well-established and had not altered during the period of the applicants' ownership of the land. It was further accepted that, in order to avoid losing their title, the applicants had to do no more than regularise the Grahams' occupation of the land or issue proceedings to recover its possession within the 12-year period. The question nevertheless remained whether, even having regard to the lack of care on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served.

The Court reiterated that the taking of property in the public interest without payment of compensation reasonably related to its value was justified only in exceptional circumstances. . . .

I'm married to a Property prof, but am nevertheless (or, perhaps, therefore) completely ignorant about what -- if anything -- has been going on in the United States on this front.  Have constitutional challenges to adverse possession been sustained, or even raised? 

Posted by Rick Garnett on November 29, 2005 at 10:26 PM in Property | Permalink

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A quick Westlaw search reveals one federal district court case in which a plaintiff claimed that the state's taking of its land via adverse possession violated the Fifth Amendment's Takings Clause by not giving just compensation. In a case of first impression for any federal court, the court held that the Takings Clause mandates just compensation when the state takes land via adverse possession but that the plaintiff's claim was nonetheless barred by the state statute of limitations. See Pascoag Reservoir & Dam, LLC v. Rhode Island, 217 F.Supp.2d 206 (D.R.I. 2002).

However, I don't see how you could successfully raise a constitutional challenge to adverse possession itself. The only clauses I can think of that could conceivably support such an argument (depending on whether the state or national government is the actor) are:

(1) the Due Process clause of the 5th/14th amendments (i.e. adverse possession violates substantive due process)

(2) the Privileges and Immunities/Privileges or Immunities clauses of Art. IV and the 14th amendment (i.e. freedom from adverse possession is a privilege or immunity of citizenship); and

(3) the Ninth Amendment (i.e. freedom from adverse possession is an unenumerated right retained by the people). Under current Supreme Court doctrine, they’re all losing arguments.

I imagine that 99% of the time, adverse possession takes place between two persons, not between the person and the state. (Indeed, in many states, the state can't take property via adverse possession.) Without state action, you couldn't even get to a substantive due process argument. The fact that the state has set out and enforces the scheme under which the private individual can take via adverse possession isn't going to be enough to turn private adverse possession into state action. See, e.g. Flagg Bros., Inc v. Brooks, 436 U.S. 149, 164 (1978) ("This Court, however, has never held that a State's mere acquiescence in a private action converts that action into that of the State.")

Even in the 1% of cases where the state is the actor, you'd need to argue that the right not to have your property taken away via adverse possession is a fundamental right "deeply rooted" in U.S. history and tradition and "implicit in the concept of ordered liberty." See, e.g. Washington v. Glucksberg, 521 U.S. 702 (1997). The right not to have your property taken away via adverse possession has never existed in the United States; on the contrary, adverse possession is a hoary common law right that has almost certainly always existed in every state. And it's hard to see how a right to always own real property you have title to, despite your neglect of it, is necessary to ordered liberty. Indeed, we've gotten along fine with adverse possession for many, many years.

Arguments under the Privileges and/or Immunities clauses face the same problems. Though the text of the Privileges & Immunities clause doesn’t limit its application to state governments, as far as I’m aware of the clause has only been applied to the discriminatory actions of states, not the actions private individuals. Furthermore, the Privileges & Immunities clause only comes into play when the discriminates against other-staters with respect to fundamental rights. See Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). The “fundamental right” inquiry is, as far as I can tell, substantially similar to that under substantive due process, so freedom from adverse possession ain’t gonna fly.

The Privileges or Immunities clause of the 14th Amendment again requires state action. And even in cases of state action, the clause only protects the privileges and immunities of national citizenship. See The Slaughterhouse Cases, 83 U.S. 56 (1873). The list of such rights is small and almost certainly doesn’t include freedom from adverse possession since such a right has never been recognized by the national government.

Finally, the Ninth Amendment is pretty much a dead letter to the Supreme Court. I can’t think of a single case where the Court has struck down a law based primarily on the Ninth Amendment. Sure, the Ninth has on at least one occasion been given a nod when the court finds a “new” right, but the heavy lifting is done by other provisions of the Constitution. See, e.g. Griswold v. Connecticut, 381 U.S. 479 (1965). Can anyone here think of a case since Griswold or Roe where the Ninth Amendment was even seriously considered as a source of “new” rights?

Yep. I don’t see any plausible constitutional challenge.

Posted by: Stephen Aslett | Nov 30, 2005 1:23:15 AM

Well, first of all the Just Compensation challenge you mention at the beginning of the comment seems real. I'm not quite sure why you disregard it. A claim that adverse possession is unconstitutional without just compensation is a claim that adverse possession, as it exists in every state of the union, is unconstitutional.

But furthermore, why isn't there a Public Use challenge? Even the majority in Kelo says it's unlawful for the government to take land from A solely to give it to B, and that is exactly what happens in an adverse possession case. Epstein tries to justify this in Takings, but it still seems odd that no litigant has dragged it out.

Posted by: Will Baude | Nov 30, 2005 8:18:50 AM

Well, I disregarded it for two reasons:

1) A Takings Clause challenge will only work against the government, a party that is rarely the adverse possessor. The vast majority of adverse possession claims are by private individuals and companies against private individuals and companies. No state action, no Takings Clause challenge; the vast majority of adverse possessions could constitutionally continue unabated. (Though I suppose you could have an individual or company acting at the behest of the state to sit on a piece of land for 15 or 20 years, but I doubt that's ever happened.)

2) Even in the rare instances in which the state is the adverse posssesor, all the Takings Clause requires is (a) public use and (b) just compensation.

Public use isn't going to be a problem if the state has adversely posssesd the land to incorporate it as part of a public park or public right of way or some such. But as we've seen with Kelo v. New London, even if the government intends to give the land to a private company, there's probably going to be public use if there's a public economic benefit. The whole policy behind adverse possession is to encourage the use of land, so if you weren't using it for anything at all (thereby allowing the adverse possession), any use by the government will have a greater economic benefit than your use, likely satisfying the public use requirement.

And just compensation won't to be a problem so long as the government pays you. I'm not aware that lack of payment is an essential element of adverse possession. All adverse possession requires is (a) open and notorious possession that is (b) hostile, (c) adverse and (d) continuous for the statutory period. Sure, payment would take some of the sting out of adverse possession, but adverse possession would still essentially be the same wouldn't it? The government gets title to land that you own merely by sitting on it and/or using it.

And, of course, all this assumes that the Takings Clause even encompasses adverse possession by the government. One federal judge has said so, but that doesn't make it so. Good arguments could be made that adverse possession shouldn't be considered a taking under the clause.

Posted by: Stephen Aslett | Nov 30, 2005 10:13:46 AM

"Even the majority in Kelo says it's unlawful for the government to take land from A solely to give it to B, and that is exactly what happens in an adverse possession case."

While you certainly could look at it that way, it doesn't seem quite right. Is recognizing title in a new person really "taking" it away? Adverse possession is really deemed abandonment of a property combined with positive action by another party. If you abandonded it and the state recognizes it, is that really a "taking" just because no one will recognize your claim to want it back now?

Posted by: Dylan | Nov 30, 2005 11:18:02 AM

There is unquestionably state action in the adverse possession cases. When the government decides to take title away from one person and grant it to another, that's precisely a taking of property that must satisfy both the public use and just compensation clauses. Look at the old Mill Act cases, cited by both sides of the Kelo opinions.

Posted by: Will Baude | Nov 30, 2005 11:34:32 AM

N.B. From a historical matter, obviously there are regulations of property, from adverse possession to forced sales to severance of joint tenancies that were not universally considered to be "takings". But the reason has nothing to do with the presence or absence of state action.

Posted by: Will Baude | Nov 30, 2005 11:45:08 AM

Isn't it wonderful when libertarians try to apply the constitution to acts primarily effected by private parties?

I think the real reason adverse posession isn't a taking or any other damn thing is that susceptibility to adverse posession laws is part of the background definition of "property." The state creates private property rights in the first instance (from a positivist standpoint), and the state has done so in a limited fashion. Thus, property rights "naturally" are subject to divestment by adverse posession just as they "naturally" are subject to injunction against public nusiance. (Is nusiance law a taking?)

Also, lets not forget that adverse posession fundamentally comes down to a statute of limitations on a suit for ejectment. The rest is a formality. However, many constitutionally protected rights come with a statute of limitations. When the state says that you can't enforce a contract after six years, has it violated the contracts clause?

Posted by: Paul Gowder | Nov 30, 2005 1:29:41 PM

(Is nusiance law a taking?)

The answer, surely, is that some nuisance laws are takings and others are not. The state can't simply call a rule a nuisance rule and therefore evade the takings clause just as it can't, say, eliminate private property entirely in order to evade the takings clause. So the question in the adverse possession cases is what kind of adverse possession rule the Takings Clause incorporates against the state. Note that in the EU case we're discussing there were actually some related intricacies involving the 1925 recording act, and the court goes out of its way to emphasize that it isn't attacking adverse possession as a whole.

Posted by: Will Baude | Nov 30, 2005 2:01:26 PM

Will,

I'm no Takings expert, but I fail to see much support in these Mill Act cases for your proposition that the Takings Clause applies to private conduct as well as state conduct. Every takings case I've heard of or read concerns the government taking a private party's property or a private party taking another private party's property at the direction or behest of the government. Language in the Rhode Island case I cited above, as well as other cases, indicates that the Takings Clause applies only to the states, and I'd bet that that was the original understanding of the clause as well. The Mill Act cases that you refer to (apparently all state cases not available online) seem to involve the taking of private land by state-created corporations expressly created for public benefit, which would make their taking of land a state action. Justice Thomas, in his Kelo dissent, notes that some later Mill Act cases can be read for the proposition that the Takings Clause applies to private "takings" due to the evolving nature of corporations, but that the constitutionality of such takings was contested and far from certain:

"As noted above, the earliest Mill Acts were applied to entities with duties to remain open to the public, and their later extension is not deeply probative of whether that subsequent practice is consistent with the original meaning of the Public Use Clause. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 370 (1995) (Thomas, J., concurring in judgment). At the time of the founding, “[b]usiness corporations were only beginning to upset the old corporate model, in which the raison d’tre of chartered associations was their service to the public,” Horwitz, supra, at 49—50, so it was natural to those who framed the first Public Use Clauses to think of mills as inherently public entities. The disagreement among state courts, and state legislatures’ attempts to circumvent public use limits on their eminent domain power, cannot obscure that the Public Use Clause is most naturally read to authorize takings for public use only if the government or the public actually uses the taken property."

Of course, Thomas here is discussing the Public Use clause rather than the requirement that the state or state-encouraged actor is the one doing the taking, but it provides support for my contention.

Indeed, Will, I'd like to see what case support you have for your position besides these Mill Act cases, which don't appear to be Supreme Court decisions, and don't clearly stand for the proposition that the Takings Clause prohibits private "takings" (i.e. in your view, adverse possession). Indeed, the fact that the Public Use Clause is right next to the Takings Clause strongly suggest that the provision only applies to the states, not private parties. (And, of course, all this assumes that we assume what occurs between private parties in the common adverse possession situation is in fact a "taking" of property.)

Posted by: Stephen Aslett | Nov 30, 2005 5:25:41 PM

Stephen,

The claim is not that the takings clause prohibits "private takings". The claim is that when the government announces that property previously titled to person A is now titled to person B, that is a government taking.

See, e.g. Pumpelly v. Green Bay Co., 80 US 166 (1871), where a Wisconsin statute authorized a man to build a dam notwithstanding the fact that this would flood the property of his neighbors. The court ruled that this constituted a taking even though the man was in no way a government actor, he was simply authorized to build a dam by a state statute.

This was the case in almost all of the Mill Act cases. For example, the Virginia Mill Act authorized a private landowner to take title to the land on the opposite side of a riverbank and pay compensation via a writ Ad Quod Damnum. This was almost universally considered to be a "taking" of property. The same thing is true throughout the states. When the government sets up a procedure by which Person A can legally take title of Person B's land without his consent, then the government is taking the property for purposes of state and federal takings clauses.

So to repeat, the claim isn't that the constitution outlaws "private takings". Of course it doesn't. The claim is that when the government sets up a procedure for private people to legally take land from other people, the government is committing a taking.

For non-Mill-Act cases where the same thing happened, see, e.g., Clark v. Nash where an irrigation statute allowed one person to condemn a right of way across the land of another person, which was analyzed as a government taking; Strickley v. Highland Boy (same thing with a mining company condemning an aerial right of way). And so on. When the government authorizes one person to legally acquire another person's property, the government takes that land for purposes of the takings clause.

Posted by: Will Baude | Nov 30, 2005 6:13:29 PM

DEAR SIRUS,
PLEASE SEND ME SOME SPECIFICS ON HOW TO FIGHT THE FOLKS THAT THINK ALL THEY NEED TO DO IS GET A LAWYER & FILE PAPERS TO TAKE YOUR PROPERTY BECAUSE THEY WANT IT.
AN EARLY RESPONSE WILL BE GREATLY APPRECIATED.
SINCERELY YOURS,
H.D.LITAKER

Posted by: HERBERT D. LITAKER | Dec 13, 2005 5:52:30 PM

When a person buys a lot with a house on it, which has been duly recorded for over fifty years in the county records and has been sold numerous times and no adverse claim has been made, is it right that a new owner should be subject to Adverse possession when there is no way that he could have known that such a possibility existed? Furthermore, since adverse possession law is really a statute of limitations law barring recovery action by a true recorded owner, is it right for a new owner to be subject to an event far removed from his time of ownership. The person claiming under adverse possession has no such limitations. Also the purchase of land in an arms length transaction requires a contract between buyer and seller. If a state constitution has an provision that "NO LAW IMPAIRING CONTRACTS SHALL EVER BE PASSED" (SEE OREGON CONSTITUTION) does that invalidate an Adverse Possession statute?

Posted by: Dave West | Apr 28, 2006 2:34:01 PM

I'm a private citizen in madison co. illinois.I've been in dealings with a RR for 4 years to buy some abandoned RR property.They have been sitting on this property for 25 years.30 days away from finalizing my aqusition of this property ,the RR has informed me that my local transit authority has threatened that if they did'nt sell this property to them that they would use eminent domain to aquire this property.And if they were to sell this property to me that they would use comdination to adversly take this property from me.And this property was not rail banked!I'm not a lawyer and cant cite cases to argue my point but, you mentioned earlier that you have never heard of a company sitting on property for a state and their future purpoesd uses.Well what is rail banking of abandoned rail road right of ways?And yes I understand the protection of the infrasructure of the transportation system in this country but not all abandoments are crucial for future uses.I'm sorry that RR were so poorly run that the goverment had to intervene and create something to take the fiscal responsibility away from the RR to maintain these properties{ to which many of these lands they dont own out right] and put it on every tax paying person in this country.Bike trails!Interm only!taxpayers cost!Thats adverse taking!

Posted by: John Bone | Jun 2, 2006 3:15:51 AM

I HAVE WATCHED A HOME THAT WAS ONCE VERY WELL MAINTAINED IN A COMMUNITY FILLED WITH VERY NICE HOMES SIT VACANT FOR 2 YEARS. THE OWNER TRASHED IT BEFORE SHE LEFT TOWN AND NO ONE HAS BEEN ABLE TO FIND HER. THE TAXES ARE 2 YEARS IN ARREARS AND THE POOL IS NOW A SWAMP. HOW CAN I ASSUME CONTROL AND MAINTENANCE OF THIS HOME UNDER THE ADVERSE POSESSION LAWS.

Posted by: JERRI | Apr 27, 2008 5:32:43 PM

We've owned property with a cottage on it for over twenty years.owned before that for a total of 75 years. Ten years ago cottage was destroyed in bad weather and had to be torn down.Having three children we financially could not afford to build although we did have a survey taken before we realized the total costs of rebuilding. At that time we discovered the neighbor's irrigation pump and pipes to be on our land and requested that he move them so if and when we built we would have full access to the potentail of our land. He said no it was his land(dispute begins 1998) His wife asked me please to not pursue this movement due to her husband being ill and they having no money to move the old eystem. I agreed and told them that it would however need to be moved before we built as I did not want to be held responsible for any damages to it. We visited and worked on the property for those ten years. put up fences,weeded cut the lawn etc. Now after ten years our neighbor refused to move his pump claiming adverse possession and our builder did not want to get envolved so we shorted ourselves property to avoid confrontation. I still would like his item moved onto his own property and have offerred to have the work done by our landscape person and he still refuses claiming the land is his and he can take our property through adverse possession. He continues to come on our property with threats and even delivered"information" via xerox copy of an article on adverse possession the other day. What can we do? Are we passed the statue of limitations because we were kind and let him use the property those ten years? Help please.

Posted by: S Sternburgh | Aug 30, 2008 10:40:22 AM

S. Sternburgh, I am not a lawyer, but adverse possession is supposed to be "hostile" which I've read means they have to have been doing it without your permission. So you might be able to argue it doesn't met all the requirements of adverse possession, but proving you gave permission, and the timing of such events could be difficult. I'd strongly suggest hiring a lawyer for a consultation to see what your options are, as soon as possible since you may or may not be past the point of no return, but if you wait you surely will be soon.

Posted by: Carl | Sep 14, 2008 4:40:27 AM

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