ADVERSE POSSESSION MYTH, REALITIES AND CONCERNS OVER THE RULE

Contents
Introduction: .............................................................................................................................................. 3 History:...................................................................................................................................................... 4 Requirements for attaining Property by Adverse possession: ................................................................... 4 Variance in different states of US regarding adverse possession law: .................................................. 6 Requirement regarding payment of Taxes: ........................................................................................... 6 Disputed Supreme Court Cases: ................................................................................................................ 6 McLean versus Kirlin Case, Colorado: ................................................................................................. 7 Wallings versus Przybylos Case, New York:........................................................................................ 7 Rule of First Possession: ........................................................................................................................... 8 Thomas Haslem versus William Lockwood Case, Fairfield County: ................................................... 9 Theories:.................................................................................................................................................. 10 Conclusion: ............................................................................................................................................. 12

Introduction:
The term adverse possession really fascinates somebody who hears about it for the first time. The concept seems so astonishing to people and their mind races to think that some piece of unoccupied property might be theirs. In a way, this principle appears to provide a lawful mode of getting something out of nothing. Fascinated about this very idea and other regimes related to property rights, this paper will try to look at the doctrine of adverse possession in detail. The first section of the paper would look at the brief history, the purpose of the doctrine and definition of adverse possession. Second part of the paper would look at Supreme Court cases related to adverse possession. Third part would look at the concept of First possession and how these two doctrines are somehow related. The next part of the paper would draw on a critical analysis upon rule changes regarding the law of adverse possession that are required. It would discuss the pros and cons of this doctrine. And keeping in mind the articles on adverse possession, an analysis on outcomes of this doctrine would be provided at the end with the conclusion.

Adverse possession essentially means if trespass that is adverse to owners interests is allowed to age, trespasser may acquire ownership. The rule of adverse possession allows or at least gives a chance to a person to gain title from another person by mere possession, and without compensating owner/landlords price or market price for that exchange. This remarkable doctrine is not as simple as it might seem. It is a like a puzzle and some pieces of the puzzle are well sought out but some are still fuzzy. A good amount of rationales for this principle have been advanced but a clear thorough examination indicates that a lot of them fall short. One basic reason for not finding a rationale for this principle is that it is applicable to vast situations which are sometimes widely varying from each other. For example, in some cases the issue is whether someone own a property or not but in some cases the issue is what geographic area does a person own. In boundary issues as well as in title disputes, adverse possession applies but the rationale behind it might not be the same. So, lets look at the brief history of this doctrine.

History:
This doctrine goes back to the early 17th century. Adverse possession was formalized for the first time in England in the early 1630s. In 1632, adverse possession officially became a part of the Englands Statute of Limitation (BOOK CITATION). This doctrine enforced a limitation time of about twenty years and after this period the landlord or the owner could not get rid of a trespasser even though he did not lose the title of the property. During 17th and 18th century the English law developed the doctrine of adverse possession. But this doctrine created a lot of difficulties initially. A lot of people demanded a change in the law regarding adverse possession. The real property commission of England proposed a couple of changes and finally these changed were incorporated in the Real Property act of 1833. Even after 1833 some changes were constantly made in this law. In United States of America the key principle of adverse possession was taken from the English law. This rule was adopted as it is in almost all states of US. In some ways the legal implications and interpretation varied but more or less everything was the same. Basic features of the principle stayed the same in all states but some explicit essentials varied from one state to another (Martin). Over the course of time, a lot of cases in US have appeared who caused legal issues and the authorities had to mend the law of adverse possession accordingly. Evan today a lot of people demand change in this law and they think that this law is not fair. Now in the following section an analysis of some Supreme Court cases is provided.

Requirements for attaining Property by Adverse possession:

This section will briefly look into some of the requirements that need to be fulfilled before a person can get hold of the property or land by adverse possession. A trespasser is permitted to lawful ownership of land or the property if his activity on the property has following components
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Hostile claim Exclusive and continuous Open and notorious

Hostile claim does not mean the trespasser becomes an obstruction on the land by holding a shotgun. Courts generally follow legal definitions of being hostile. One such rule requires that the trespasser should be aware that he is trespassing. For example, in Evanich v. Bridge a man applied for ownership of some acres of land from his neighbors property by using them for several years. If he had known that the land wasnt his then the court would have illustrated that his actions is hostile in nature. This case involved a disagreement between two parties over ownership of a small piece of land and both parties claimed to have legal possession of the land. (Evanich v. Bridge, 119 Ohio St.3d 260, 2008-Ohio-3820, 2008) Exclusive and continuous possession means that the trespasser should exclusively possess the land without interruption for a given time period which is stated by the law. The statutory time period is around twenty years. In limitation act it was stated as twenty five years but then they changed the number of years to twenty. But this time period varies in different parts of the world. Open and notorious possession simply means that the possession should be obvious to everyone. The trespasser must be physically present on the land and he should have been treating that land as it was his own. Thus the trespasser must have the ownership of the property just not orally but physically. For example, in the case of Sawyer v Prusky, the Supreme Court of Washington before dismissing the appeal or looking into the case in detail looked into the basic components that must be present in a case related to adverse possession. In this case both Plaintiff and defendant owned adjacent property located in the Town Argyle of Washington. The dispute arose when during 2008 defendant had his property surveyed. After the survey they found out that the line between their parcels has now extended around ten more feet into what they had treated as the Sawyers property. A lot of other issues also
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came out as the result of the survey and thus plaintiff sued the defendant. So, by recounting the basic components of the adverse possession case the court was able to reach a verdict and thus this rule was established that no matter what the case is the above mentioned components must be a part of the adverse possession case.

Variance in different states of US regarding adverse possession law:

State laws on hostile claim: Regions where the possessor must intend to take the land Arkansas, Maine, Michigan Missouri, Montana, Nevada South Carolina, Texas, Virginia Vermon,t Wyoming

Regions where the possessor must believe land is owned Georgia, Iowa, Louisiana

Whereas, possession alone has shown hostility in all other states Requirement regarding payment of Taxes: A lot of states have made it compulsory that the trespasser pay the taxes on the property for the stated statutory time duration. If, for some reason, the trespasser meets all other conditions except the payment of the taxes, the court will usually award a prescriptive easement to use the property to the trespasser instead of ownership through adverse possession.

Disputed Supreme Court Cases:

During the past couple of years a lot of people have been demanding change in the law pertaining to adverse possession. A lot of ideas have been flowing around for reforming the adverse possession law. Lets look at a couple of recent cases which caused problems for the legislation.
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McLean versus Kirlin Case, Colorado:

This is the case that gained a lot of popularity during the last couple of years. This case even gained national level popularity. This case involved a dispute between two neighbors at Colorado. The first party, the Kirlins, bought some land in 1984. The land was at a distance from their home and it was located at a beautiful place. They planned to build their dream home there. The second party known as McLeans lived right next to Kirlins property. McLeans used Kirlins land for twenty five years and the land was around fourteen hundred square feet. They used some part of it as a garden and they occasionally held social events there. In 2006 the Kirlins realized that their land is being used so they started to build a fence around the property. McLeans got a stay order to stop the fence from being built and in 2007 the district court judge awarded the property to McLeans on the basis of adverse possession. Kirlins claimed that even before the trial had begun they offered to sell the part of the land to McLeans and they even claimed that they offered them easement so that they could use the property to walk and get to their backyard. But despite all this McLeans went to the court to quite title in their favor. This case caused a lot of panic and people started to protest against the law of adverse possession. People heavily criticized the Colorado justice system. The idea was extremely shocking because the owner who paid taxes on his property for several years and was looking forward to build a home there in the future could have his property allotted to some stranger. People protested for some days and it was so powerful that the Colorado legislative system acted immediately and changed the laws related to adverse possession. Governor signed the new legislation and they introduced some more clauses to the adverse possession law. One such clause was that the burden of proof for adverse possessor is now to prove every part of the claim that is made by clear and convincing evidence.

Wallings versus Przybylos Case, New York:

Another case in US that caused problem for the legislation was heard in New York. It was between Wallings and Przybylos. Both these parties purchased adjoining lots and built a home
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and a swimming pool there but Wallings built their home some years before Przybylos. After Przybylos came back Wallings placed topsoil on Przybylos property and they also constructed a fence there for their dog. They also put up a 69 feet of plastic pipe and installed a big birdhouse there. About Seventeen years later, the Przybylos carried out a survey on their land and they found out that they possessed the property in dispute. They sued to quiet title but lost the case. This case was not as problematic as that of McLarens and Kirlins because in this scenario there were questions regarding whether the Wallings as well as the Przybylos thought that the disputed land was theirs. The dispute also created public concerns that the unsuspecting property owners, mainly in rural parts, could lose their property to non meticulous trespassers. The court of appeals in New York took notice of this case and they recounted the basic common rules which were 1) Adverse possession must be verified by convincing and clear evidence 2) Possession must be hostile, actual, open, notorious, exclusive and continuous for the required time period New York Assembly particularly noted that its bill was intended to address the holding in Walling because the property rights shouldnt be subject to deceit and trickery. Thus the Supreme Court took an action and legislation was again put into question because of this case. Now the paper would look at another rule named First possession rule. Then the next section will discuss that how rules like adverse possession and first possession increase overall efficiency.

Rule of First Possession:

One rule for establishing property is First possession rule. It basically means first in time, first in right. One advantage of this rule is that it is extremely easy to apply. Courts usually find this very efficient. Following is a classic case of Supreme Court of Errors of Connecticut, Fairfield County.
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Thomas Haslem versus William Lockwood Case, Fairfield County:

The plaintiff, after finding horse manure scattered all over a public highway, hired workers to collect the manure and left it overnight on the public highway for removal the next day to his own property. Before the plaintiff returned however, the defendant who found heaps of manure on the public highway removed it to his own property. As a result, the plaintiff brought action to recover the value in damages of the manure lost to the defendant. The trial court entered a judgment in favor of the defendant, which after appeal by the plaintiff was reversed and resulted in the trial court remanding the case for a new trial. The court held that the plaintiff acquired the property by first possession and thus retained rights over that property for any reasonable amount of time required to remove the manure. In the case of Haslem versus Lockwood, the manure in question was found on public property, resulting in an unclear assignment of property rights to the relevant party. The property rights regime that best describes who owned the manure that lay scattered across the public highway would be a private property rights regime once the clouds over the status of ownership of the manure have been cleared. The efficient use of manure is maximized when it is owned and used by one person as compared to common use for not only does common use result in a very minimal amount of manure available for everyone, but at the same time, those who do not appreciate the full value of the manure will still use it because of the free rider problem. The clouds of ownership over the manure can be removed by the clear assignment of property rights which in this case can be achieved through the rule of first possession. The rule of first possession requires the transfer of the rights of ownership of a resource to the first person who seizes the property and has often been applied to the cases of both natural resources and abandoned property. The rule of first possession has the defining property of clearing away the clouds over the ownership of the manure as shown in the case of Haslem versus Lockwood. Although, the lower court gave a judgment in favor of the defendant, the supreme court of
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Vermont overturned this judgment, because according to the rule of first possession, the plaintiff had gained the property rights over the manure by gathering up the manure for the purpose of removal the next day. The defendant in removing the manure infringed the rights of the plaintiff, making the payment of damages an adequate solution to this case. Whether the case is solved through legal means, or through bargaining outside the legal system because of low transaction costs, the clear definition of property rights such as in this case by the Supreme Court of Vermont, through applying the rule of first possession, gives both parties a clear position from which to bargain and reach a reach an equitable resolution. The logic behind setting up this rue is also quite similar to that of adverse possession law. Both of these rules clear clouds over ownership and they encourage maximum use of land. It is obvious that efficiency requires removal of uncertainty and these rules are ways of doing just that. Some other laws and rules like these are also in place. One such type of laws are Estray laws. Estray laws allow finders to be keepers, but they must register whatever they find if it is above a certain value. These laws are also set on place just to maximize efficiency so that useful recourses are not wasted.

Theories:
Now lets look at why rules like adverse possession and first possession should exist and what are their advantages. Following are a couple of pros Clears clouds over ownership Prevents valuable resources from being left idle For few facts under dispute, it is easy to apply

Law and economics scholars usually talk about legal rules in terms of efficiency. The rules of adverse possession and first possession increase overall efficiency of the society. (BOOK, LAW AND ECONOMICS) These rules help to clear clouds over the property and they

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encourage the use of valuable assets and prevent them from being left idle. So rules like adverse possession essentially maximize land utility. A lot of people have written about the problems regarding the adverse possession doctrine. Most of them do not even agree with each others in terms of problems. But the major disagreement is because of the intent of the adverse possessor. In current law the question of good faith of the possessor still does not hold significant importance. The fact is that, in some of the cases bad faith possessor tend to keep the land due to shortcomings of the legal system (SITE SOMETHING). In New York Times the story of an entrepreneur appeared who used to fix up foreclosed and unclaimed homes for which he had no title or ownership. He rented them to families in need. Over this incident a lot of people reacted. Their reactions were quite different from one another. Some people said that the logic behind the adverse possession law is completely followed by this person and he is doing the right thing. While some others said this is theft and the person who is involved in this should go to jail (ITE). Hence it is obvious how this adverse possession law is interpreted in so many different ways. A lot of people have given their opinions on the law related to adverse possession. This section will look at some of those thoughts. According to Professor Susan Martin adverse possession law holds significant importance and its worth keeping. Professor stake stated a reason for this. He said depriving people of lands have long occupied . . . would cause them too much pain but fairness demands that law compensate actual owner because adverse possessor knows he or she is in the wrong. (CITE) On the other side, some scholars believe that only bad faith possessors should be allowed to claim property by adverse possession. It is also suggested by some of the professors that some more clauses should be added to the adverse possession law. For example, it is suggested that if someone wants to claim property or land through adverse possession then it should be mandatory that the trespassers know they are trespassing () CITE. In this way it would be
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possible to identify bad faith possessors from good ones. In this way the owner of the property might get more rights to protect its land in case some outsider comes to take it, like the Colorado case which was discussed earlier. One suggestion is to formalize the recording and registration system of property even more. This way a lot of disputes can be resolved and the burden on courts would go down also. This is one suggestion through which accountability increases in the system.

Conclusion:
The adverse possession rule poses concerns over the legislative system. In the light of the above discussion it is obvious that there are two sides of the picture. A lot of people seem to be in favor of adverse possession law and a lot of people have the view that this law is very unjust. From an academic perspective, as discussed in the paper, rules or laws like adverse possession and first possession maximize land utility and as a result they increase the overall efficiency level of the society. The land that is left idle comes into use by the possessor hence it contributes to the welfare of the society. But sometimes it happens that due to shortcomings of the legislative system the real owner of the land loses his or her property to a bad faith person and this causes problems. So, there is room from improvement in the legislative system and the system should be designed in a way that it should take care of fraud and bad faith people. To increase accountability, a registration system is preferred. It is believed that it would take care of most of the adverse possession claims. In United States of America, the recording system is still used instead of the registration system and the chances that the recording system would be converted into registration are extremely low. It is very important that the element of unfairness is taken out from adverse possession law, as much as possible. In the light of the cases that were discussed above it is clear that unfairness is a threat to the legislative system. People start pointing figures toward the statue of the law if
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injustice is done to someone. In the cases it was seen how people protested against the verdicts of the courts. It was obvious to the general public that injustice has happened to the owner of the land and some day some stranger could also come and take their property away as well. So they demanded a change in law such that rightful owners are protected from others by law. Hence, the paper would conclude by saying that the adverse possession law has a lot of good aspects in it and it is worth keeping. Though it has some problems also and a lot of concerns have been raised on this law during the last couple o years but it increases utility level of the society and hence something should be done to eliminate these problems and concerns.

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Cooter, Robert, and Thomas Ulen. Law & Economics. 3rd ed. Boston: Pearson/Addison Wesley, 2008. Print.

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