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Friday, November 16, 2007

Adverse Possession in the News

It's not very often that the New York Times takes note of adverse possession law.  So this short article about an abortive effort to toughen New York's adverse possession law is noteworthy.  As the article notes, the New York legislature, prodded by a disgruntled landowner who had lost a piece of her land to an encroaching neighbor, passed a bill that would have barred so-called "bad faith" adverse possession -- adverse possession where the adverse possessor has actual knowledge that he is occupying someone else's land.  Elliot Spitzer (wisely) vetoed the measure, noting the immense litigation costs such a state-of-mind requirement would generate.  Most states ignore the state of mind of adverse possessors, almost certainly for this reason.

If you've read Sonia Katyal and my article, Property Outlaws, you know that we actually favor making it easier to adversely possess land.  So, as you can imagine, I followed this back and forth between Gov. Spitzer and the legislature with some interest.  One of the ironies of the story is that the disgruntled litigant who lobbied legislators for the change in the law would likely not have benefitted from the new rule had it been in place when her case was litigated.  She lost a slice of her land to an encroaching neighbor, and boundary encroachments are less likely to be knowingly undertaken than, say, outright squatting, which is less common, though not unheard of, these days.

Also ironic is the comment by the real estate lawyer at the end of the story that knowing adverse possession is "unfair" and "un-American."  Since a great deal of land in the American West was  settled in the nineteenth century by people who were knowingly occupying land they did not own, whether the federal government's or tribal land, a practice that was ultimately formalized (at least with respect to federal land) in the Homestead Act of 1862, I can think of almost nothing a person can do on land that is more "American" than squatting.

Posted by Eduardo Penalver on November 16, 2007 at 11:46 AM | Permalink


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If someone says, "racial hatred is un-american" or "anti-immigration is un-American," would you respond, "That's really stupid because we have been always been racist" or "That's really stupid because we have always been xenophobic"? "America" can mean something other than what Americans have always done.

Posted by: Quiet American | Nov 17, 2007 1:10:29 AM

Re: "a great deal of land in the American West was settled in the nineteenth century by people who were knowingly occupying land they did not own, whether the federal government's or tribal land"

Is that true of "tribal land"? Does not Stuart Banner provide us with a bit more complicated (although no less disconcerting or shameful) picture in How the Indians Lost Their Land: Law and Power on the Frontier, 2005? He writes: "In the early 1790s, American lawyers and government officials considered the Indians *owners* of the land. By 1823, however, when the United States declared in *Johnson v. M'Intosh* that the Indians were in fact *not* the owners of the land but had merely a *right of occupancy,"* that conclusion was utterly unsurprising, because it was already the conventional wisdom." This was not, strictly speaking, about "adverse possession." Or perhaps I do not fully understand the legal meaning of adverse possession.

Posted by: Patrick S. O'Donnell | Nov 16, 2007 5:57:39 PM

Agreed -- the same story played out over and over again everywhere west of the Appalachians.

Posted by: Eduardo Penalver | Nov 16, 2007 2:34:24 PM

Forget the West, I bet a lot of land in the *East* was acquired that way too, at least when the "frontier" was closer to the Appalachian Mountains. Indeed, I'd be curious to see where the chain of title to the property owner's land stops in the Warren case.

Posted by: Bruce Boyden | Nov 16, 2007 2:25:00 PM

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