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Wednesday, November 30, 2005

Adverse Possession At Home and Abroad

I told a leftist friend this morning about Rick Garnett's post and the ECR decision that adverse possession can be a human rights violation, and her first reaction was to wonder whose bright idea it was to put property rights in the code of human rights. [From what I can tell, Rick only links to the UK decision and a press release. You can download the ECHR decision by searching their website (the case is named Pye), or try this link. Thanks to (my property professor) Lee Anne Fennell for finding the decision.]
Notwithstanding my posts in the comments to Rick's post, I do not think adverse possession in American property law is necessarily unconstitutional. But it is worth considering how the ECHR's reasoning would play out here if the we-should-take-heed-of-foreign-law folks got their way.
From what I can tell, the court rebuffed the standard argument that since the adverse possession statute existed before any of the transactions took place, it simply limited the scope of the property rights. One hears this argument a lot, but it obviously has its limitations. An American state surely couldn't pass a law that said, "state property rights shall not exist for purposes of the 14th amendment to the federal constitution." The federal constitutional property rules presuppose some muddy notion of what is and isn't property, and if they relied entirely on state-definitions, then states could unilaterally choose to repeal the federal rules. Now the ECHR doesn't do a very good job of explaining this, but that does seem to be a part of the reasoning.
Second, the decision seems to place dispositive weight on the presence of a recording act. It seems to think that adverse possession laws are justified, where they are justified, only by an attempt to settle legal uncertainty about title ownership. Since, here, it was perfectly clear who owned the land beforehand, there was no role for adverse possession to play. I mention this in light of Lee Anne Fennell's forthcoming article on adverse possession, where she suggests that the doctrine ought to apply only where the adverse possessor is acting in "bad faith". In other words, she suggests that we have other legal mechanisms to deal with uncertainty in land ownership, and the only real use of adverse possession is to redistribute land from low-value to high-value users. In other words, Fennell and the ECHR have nearly opposite views about the purpose of the doctrine of adverse possession.
Implications for american law? I think that if Fennell is right that adverse possession serves only the "narrow niche" of being a doctrine of "efficient trespass", then it follows that uncompensated adverse possession is an unconstitutional taking of property. (When the state sets up a mechanism that allows one person to take legal title to another's property, whether it is a Mill Act, a Development Corporation, or an irrigation statute, that mechanism is a taking of property for constitutional purposes.) Even the Kelo majority appeared to believe that when the government wished to move title from one person to another on efficiency grounds, it was constitutionally bound to compensate the original property owner. There might be historical reasons to grandfather in old-style adverse possession rules most of the time, but if we follow Fennell's path and change adverse possession away from the historical version and into a new "efficient trespass" doctrine, it seems hard to avoid the compensation requirement.
So I do not mean to imply that Fennell's argument is wrong-- on the contrary, it seems quite plausible to me. But if it is right, I think the interesting conclusion-- that adverse possession is therefore unconstitutional-- probably follows. If the comments to my previous posts are any indication, commenters will probably disagree rather strongly. I look forward to hearing why.
[UPDATE: I forgot to mention that there were 3 dissenters in the case. Their opinion was very brief, and reiterated the argument that the property right simply had an adverse-possession restriction built into it. Unfortunately, like the majority, they failed to provide a theory about how to tell when a government can "build in" qualifications to a property right for constitutional purposes.]

Posted by Will Baude on November 30, 2005 at 06:58 PM in Constitutional thoughts | Permalink


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I think I understand why I misunderstood your position in the previous thread. I can understand how one might mistakenly classify a private individual getting title to another's property via adverse possession as a "taking," though I know now that we both agree that the Takings Clause applies only to the government. After all, the adverse possessor that was without title now has it; the party that used to have title now is without it. The adverse possessor has "taken" title in a colloquial sense, but not in the sense in which the Takings Clause uses the term.

What I find hard to understand is your formulation of a "taking." I've simply never heard that a taking can occur merely when the government implements a mechanism that allows one private party to take title to another private party's property without his consent. My own understanding is that takings occur when the government physically possesses your land or passes a regulation that allows it to take your land or passes a regulation that effectively destroys the economic value of your property. Looking through my Aspen Property primer, I see that it similarly divides takings broadly into "condemnation" takings (i.e. basically, direct assertion of eminent domain over a property) and "inverse condemnation" takings (i.e. regulating away a property's economic value). Nowhere do I see a formulation like yours. Indeed, I see no mention even of public use in your definition, which would the clause seems to demand for a "taking" to occur.

It seems to me that your definition is overly broad. Family laws provide for granting legal title to the other spouse's property without that spouse's consent, yet divorce proceedings aren't treated as takings. Government seizures of property to pay off court-ordered judgments are likewise government mechanims to transfer title from one party to another, yet these are also not treated as governmental takings. Probate is yet another example. In light of examples such as these, I just don't see how government-created mechanisms for property transfer from an unwilling party to another party constitutes a governmental taking per se. These counterexamples caused me to strain to interpret your comments (wrongly) as a simple misunderstanding about to whom the Takings Clause applies (i.e. governments rather than individuals).

Perhaps you have taken Justice Chase's famous dictum in Calder v. Bull too literally? When Chase made his famous comment about a legislature unable to pass a law taking property from A and giving it to B, he made it in the context of giving examples of arbitrary and capricious laws. What Chase was saying the government could not do was grant property from one person to another in a specific law, not that the government could not create mechanisms by which property can, under appropriate circumstances, be taken from an unwilling party and given to another:

"A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it."

Anyway, I don't want this argument to go on forever. I can see a principled argument for why government gaining of title to property via adverse possession is a taking, though (for the moment) I disagree. However, I absolutely cannot see why a state-created right of adverse possession, in which the state allows one private party to take title from another private party, constitutes a taking. If the latter is the case, then the state may never allow one person to take property from another unwilling party without paying compensation, despite many statutes--unchallenged for years--allowing government to do precisely that. I find this conclusion unbelievable, and think it's more likely that the Takings Clause simply does not apply to private adverse possession due to, inter alia:

(a) the text/original meaning of the clause (where's the public use in private adverse possession? would a reasonable speaker of english have interpreted private adverse possession to be a taking?)

(b) long-standing tradition (as far as I can tell, it's never been suggested that the clause applies to private adverse possession), and

(c) the negative public policy implications of requiring governments to pay for transfers of property between willing and unwilling individuals.

Posted by: Stephen Aslett | Dec 1, 2005 12:57:12 AM


The courts have never classified adverse possession as a taking, which is fine by me. But the 19th-century precedents that suggest that private condemnations authorized by statute (Mill Act, irrigation, etc.) are "government takings" seem eminently right. Do you think Pumpelly was wrongly decided?

Posted by: Will Baude | Dec 1, 2005 1:24:23 AM

One difference between assigning title in divorce cases and the like and adverse posession is that in the first type of cases, there is some sort of privity that the state is enforcing - the party losing the property somehow lost its right to the property. Ie: you contracted away some land, and refuse to sign over title (which also involves some compensation, just not by the gov't).

Secondly, public use is not required for a taking, it's required for a legal taking. A taking without just compensation or for a private use is not a taking, true, but it is also just plain illegal. The amendment only mentions takings for public use because the government doesn't have the enumerated power (Art. 1) to take private property for private use. Hence, the takings clause adds a power, not a limitation.

One could argue that efficient adverse posession is a sort of privity (I think equitable servitudes run even with adverse posessors), so it's not a governmental taking, but that's a different argument.

Posted by: D Conrad | Dec 1, 2005 4:01:00 AM

Another difference about the divorce cases is that the government is to some extent dividing things under the legal fiction that the parties have already divided them in some informal way or to enforce some sort of network of rights and wrongs between the parties. Obviously bankruptcy and tort prodceedings can cause property to change hands too.

Historically that's quite different than these Mill Act or Irrigation statutes that the courts have almost always (rightly) recognized to be government takings of property.

Posted by: Will Baude | Dec 1, 2005 7:28:31 AM

Rights by adverse possession arise as a result of a property owner's failure to prosecute, within the time limited by statute, an action to quiet title.

Posted by: Patrick Greenwood | Dec 3, 2005 10:21:15 AM

Yes. Therefore?

Posted by: Will Baude | Dec 3, 2005 5:21:51 PM

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