5 ms·

The source of the possession being law is understandable. I guess what is bonkers or could use some (historical?) explanation is why real property is given an

The source of the possession being law is understandable. I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded (though probably unmarked physically). To some, extending that logic might say, I have a right to take this bike because it's just sitting in front of a house unused. Is it to help turnover unused land through the generations and ensure it doesn't sit idle without active use by a rich person? What's the purpose of such an allowance in the law? I'm guessing it comes from some old British reason.

kelnos 6y ago
That's a really good question, and I wonder as well. I tend to believe that land is just different from things like manufactured goods. There's a fixed amount of land (modulo landfill and such), and we all have to live on it. People disagree as to how land should be used, and people believe they should get a say in how other people's land is used because land is a common good. Land isn't fungible; some people would prefer waterfront property, while others would prefer to live in the woods, but at the same time most people would prefer to live such that they're not too far away from other people, and from things like grocery stores. While there are certainly some people who do want to live remotely, that's not that common. Each plot of land is different, and one person controlling one plot of land means everyone else is deprived of that particular plot. So we basically say: "ok, you can own this land, but you have to use it in certain community-approved ways, and you have to actually use it; if you don't, we're going to take it away or require you to sell it to someone who will" (ok, the latter half of that is vanishingly rare). Or maybe "if someone else starts using it and you can't be arsed to notice, we're just gonna let them keep using it". And maybe that's not all that unreasonable, despite what I've said about this type of law being bonkers? But a bicycle is just a bicycle, and the supply of them is effectively infinite. If I'm not using mine, there's no bicycle limit such that my "waste" would cause someone else to not be able to use a bicycle. They can simply go to a store and buy one, an identical one, even, if they want. The same doesn't hold true for land: me owning and doing something (or not doing something) with a particular plot of land means that no one else can do something with that specific plot of land. If it's undesirable, or in the middle of nowhere where near-identical land is abundant, perhaps it doesn't matter. But if it's in a highly-desirable place where space is limited, it might matter. (And thus we have the philosophical basis for housing crises.)
- secabeen 6y ago
  I think the other important angle is that land is often the foundation of other property (structures, improvements, etc.) You own land, but care so little about that land that someone else builds some other property on it. Then 20 years later you notice, and try to claim it back, what do you do about the structure and improvements? The adverse possession laws give an incentive to actual owners to exercise their ownership now, rather than incentivizing them to stay silent, so as to later claim the land and all improvements for free.
wahern 6y ago
> I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded AFAIU, title recordation is a relatively recent thing. And the logic of adverse possession, which I think is a vestige of early statutes of limitations (retained out of principle or ad hoc, I dunno), mirrors the logic of later equitable remedies. Fundamentally, adverse possession doesn't magically transfer title, but because the court refuses to grant the ejectment request of the prior possessor who sat on his rights, the person in possession thus has better title than anyone else in the world in terms of what can be claimed in court. More generally that reflects the logic of traditional property law under the Common Law--ownership is about having better rights to possession than anyone else in a relative sense, not about some singular, abstract title. Emphasis on formal properly titles is how you distinguish continental Civil Law from Common Law, or from many of the rules that controlled prior to the emergence of the Common Law.[1] Once courts of Equity came about you could then ask the court to quiet title, which can be used to change any formal title registrations and prevent future litigation, though technically that would have been (and often remains) unnecessary to legally deed such property. And adverse possession has been so well established for so long that most jurisdictions have kept it enshrined in statute. Though like the Rule Against Perpetuities, many jurisdictions have eviscerated it. [1] There are actually strong arguments that formal title requirements are a barrier to the development of more egalitarian economies. Formal titles seem an obvious and easy solution when you're in the elite, or in the context of an already well-developed political and economic environment. But formalisms often make it too easy for the rich and sophisticated to screw over the poor--you take their money, you give them possession, then at some later date (maybe even a later generation) it's all taken away because nobody ever got the valid imprimatur of some bureaucrat. You would think such a simple rule would benefit the poor, but that's not how it plays out it practice. Some economists argue these effects remain consequential in many Latin American and other jurisdictions, particularly ex-colonies of continental powers like France and Spain. In the domains of property and contract law, China has quite deliberately incorporated many Anglo-American principles and rules in its legal reforms precisely because formalisms can create hidden costs far greater than what they seem to save. And I think traditional Chinese property law, at least, also leaned in a similar direction, which is why the phenomenon of so-called nail houses existed in the first place--because the courts recognized (albeit haphazardly) certain possessory entitlements that didn't arise from any formal title, which in communist China were few and far between.
sjy 6y ago
“The great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing.” https://law.stackexchange.com/questions/1942/what-distinguishes-adverse-possession-from-theft/19497 https://law.stackexchange.com/questions/1942/what-distinguis...

kelnos 6y ago

That's a really good question, and I wonder as well. I tend to believe that land is just different from things like manufactured goods. There's a fixed amount of land (modulo landfill and such), and we all have to live on it. People disagree as to how land should be used, and people believe they should get a say in how other people's land is used because land is a common good. Land isn't fungible; some people would prefer waterfront property, while others would prefer to live in the woods, but at the same time most people would prefer to live such that they're not too far away from other people, and from things like grocery stores. While there are certainly some people who do want to live remotely, that's not that common. Each plot of land is different, and one person controlling one plot of land means everyone else is deprived of that particular plot. So we basically say: "ok, you can own this land, but you have to use it in certain community-approved ways, and you have to actually use it; if you don't, we're going to take it away or require you to sell it to someone who will" (ok, the latter half of that is vanishingly rare). Or maybe "if someone else starts using it and you can't be arsed to notice, we're just gonna let them keep using it". And maybe that's not all that unreasonable, despite what I've said about this type of law being bonkers? But a bicycle is just a bicycle, and the supply of them is effectively infinite. If I'm not using mine, there's no bicycle limit such that my "waste" would cause someone else to not be able to use a bicycle. They can simply go to a store and buy one, an identical one, even, if they want. The same doesn't hold true for land: me owning and doing something (or not doing something) with a particular plot of land means that no one else can do something with that specific plot of land. If it's undesirable, or in the middle of nowhere where near-identical land is abundant, perhaps it doesn't matter. But if it's in a highly-desirable place where space is limited, it might matter. (And thus we have the philosophical basis for housing crises.)

secabeen 6y ago
I think the other important angle is that land is often the foundation of other property (structures, improvements, etc.) You own land, but care so little about that land that someone else builds some other property on it. Then 20 years later you notice, and try to claim it back, what do you do about the structure and improvements? The adverse possession laws give an incentive to actual owners to exercise their ownership now, rather than incentivizing them to stay silent, so as to later claim the land and all improvements for free.

wahern 6y ago

> I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded AFAIU, title recordation is a relatively recent thing. And the logic of adverse possession, which I think is a vestige of early statutes of limitations (retained out of principle or ad hoc, I dunno), mirrors the logic of later equitable remedies. Fundamentally, adverse possession doesn't magically transfer title, but because the court refuses to grant the ejectment request of the prior possessor who sat on his rights, the person in possession thus has better title than anyone else in the world in terms of what can be claimed in court. More generally that reflects the logic of traditional property law under the Common Law--ownership is about having better rights to possession than anyone else in a relative sense, not about some singular, abstract title. Emphasis on formal properly titles is how you distinguish continental Civil Law from Common Law, or from many of the rules that controlled prior to the emergence of the Common Law.[1] Once courts of Equity came about you could then ask the court to quiet title, which can be used to change any formal title registrations and prevent future litigation, though technically that would have been (and often remains) unnecessary to legally deed such property. And adverse possession has been so well established for so long that most jurisdictions have kept it enshrined in statute. Though like the Rule Against Perpetuities, many jurisdictions have eviscerated it. [1] There are actually strong arguments that formal title requirements are a barrier to the development of more egalitarian economies. Formal titles seem an obvious and easy solution when you're in the elite, or in the context of an already well-developed political and economic environment. But formalisms often make it too easy for the rich and sophisticated to screw over the poor--you take their money, you give them possession, then at some later date (maybe even a later generation) it's all taken away because nobody ever got the valid imprimatur of some bureaucrat. You would think such a simple rule would benefit the poor, but that's not how it plays out it practice. Some economists argue these effects remain consequential in many Latin American and other jurisdictions, particularly ex-colonies of continental powers like France and Spain. In the domains of property and contract law, China has quite deliberately incorporated many Anglo-American principles and rules in its legal reforms precisely because formalisms can create hidden costs far greater than what they seem to save. And I think traditional Chinese property law, at least, also leaned in a similar direction, which is why the phenomenon of so-called nail houses existed in the first place--because the courts recognized (albeit haphazardly) certain possessory entitlements that didn't arise from any formal title, which in communist China were few and far between.

sjy 6y ago

“The great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing.” https://law.stackexchange.com/questions/1942/what-distinguishes-adverse-possession-from-theft/19497 https://law.stackexchange.com/questions/1942/what-distinguis...