The Morality of Adverse Possession

Over at Concurring Opinions, David Fagundes has an interesting post contemplating the morality of adverse possession.

Adverse possession may be the most counterintuitive doctrine introduced to students during their first year of law school, or even at any time during law school.  The notion that a trespasser can become a valid title holder, eliminating the prior owner’s claim to the property, seems terribly wrong to students at first blush.

And that’s exactly why I enjoy teaching it so much.  Because when examined more closely, there are plausible utilitarian rationales underlying adverse possession.  Adverse possession may reward and incentivize more productive use of land, increasing aggregate social welfare.  Pressed to examine this and other rationales, students may not end up agreeing that adverse possession is a good doctrine, but they learn that the story is a lot more complicated than their initial reaction indicated.

It reminded my of my own property professor, Jim Krier (father of Andrew WK), who delighted in challenging the class on our notions of "fairness" as they related to property law.

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