5 ms·

> 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 own

by 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.

supernova87a 6y ago
Well, it is definitely true that active in-person sitting on a property could be beneficial to those who have more time than lawyers. Although in a sense this has ceased to matter anyway because any prudent property owner puts up fences around a property to avoid this possibility. At least where this issue is known. I can see it going both ways. In some poor countries, the protection of the title is the greatest help to the disadvantaged -- to know that no one just by strength of goons or money can take that away. And then in other countries, the poor get to (once in a while) benefit from sitting on land that went unused and eventually having it become theirs. In the US, everything is so paperworked and documented, that it simply seems strange that this possibility exists.
- wahern 6y ago
  Adverse possession was never really about squatters' rights. It effectively acts as a statute of limitation that cuts off the period in which someone can make a claim to property based on defects in the possessor's title. It's not about protecting the ability of a poor farmer or poor shop owner to take over some abandoned land. That's the exception, not the rule, and it usually would have happened umpteenth transfers in the past if it happened at all. Usually such people buy the property in relatively informal deals--at least, informal by the standards of the Civil Law, but often sufficiently formal to meet Common Law requirements. But because the risk of title defects is much more ominous in Civil Law countries, banks and other formal sectors of the economy heavily discount the value of that property as collateral, if they even value it at all. So it makes it more difficult for the poor to build wealth. Even in the U.S., many small business owners will get their start by mortgaging their homes. The ability to use property as security is a critical mechanism for the poor and working classes to bootstrap themselves into the capitalist economy. At least, that's the argument in "The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else" by the Peruvian economist Hernando de Soto. AFAIU, in the intervening years many countries paid heed to his argument and instituted at least minor land reforms, for example making it possible to register transfers where prior records are defective or absent. But unless such reforms are self-executing (as with adverse possession or more modern statutes of limitation), I doubt such reforms are helpful in normalizing the informal property market. De Soto also makes the case that so-called squatter's rights were an important factor in the emergence of the American middle class, but that has little to do with adverse possession and more to do with rules set by the Federal government in land grants and when dealing with squatters on Federal land. Common Law adverse possession could never operate against the government without their consent. In modern America adverse possession usually comes into play in disputes over boundaries. A registered property line may have been two feet to the east, but for whatever reason a neighbor has been using that two-foot section as their own for many years, as probably previous neighbors did. When the error comes to light (e.g. maybe the registered title owner wants to build an extension to his house and hires a surveyor), adverse possession is used to settle ownership with the neighbor who has been adversely possessing the strip of land. That's a far cleaner solution than, e.g., an easement, which would just add unnecessary complexity to both neighbors' titles and invite future litigation by subsequent purchasers. On a similar note, I've read that clearing land to graze cattle in the Brazilian jungle primarily is for laying claims to plots of land purchased formally and informally, rather than for meat production. The presence of cattle is a de facto, and to an increasing extent de jure, proprietary claim on a piece of land. In a sense it behaves very much like adverse possession--the presence of cattle prevents someone else from using the land, given that fscking with someone's cattle can be a shooting offense (like in the American Old West). Some have argued that if there were more convenient ways to secure a claim on land, there would be less pressure to clear cut the jungle. Though, absent concrete evidence that alternatives would lead to less clear cutting, that sounds more like a libertarian talking point designed to appeal to liberals.

by wahern 6y ago

supernova87a 6y ago

Well, it is definitely true that active in-person sitting on a property could be beneficial to those who have more time than lawyers. Although in a sense this has ceased to matter anyway because any prudent property owner puts up fences around a property to avoid this possibility. At least where this issue is known. I can see it going both ways. In some poor countries, the protection of the title is the greatest help to the disadvantaged -- to know that no one just by strength of goons or money can take that away. And then in other countries, the poor get to (once in a while) benefit from sitting on land that went unused and eventually having it become theirs. In the US, everything is so paperworked and documented, that it simply seems strange that this possibility exists.

wahern 6y ago
Adverse possession was never really about squatters' rights. It effectively acts as a statute of limitation that cuts off the period in which someone can make a claim to property based on defects in the possessor's title. It's not about protecting the ability of a poor farmer or poor shop owner to take over some abandoned land. That's the exception, not the rule, and it usually would have happened umpteenth transfers in the past if it happened at all. Usually such people buy the property in relatively informal deals--at least, informal by the standards of the Civil Law, but often sufficiently formal to meet Common Law requirements. But because the risk of title defects is much more ominous in Civil Law countries, banks and other formal sectors of the economy heavily discount the value of that property as collateral, if they even value it at all. So it makes it more difficult for the poor to build wealth. Even in the U.S., many small business owners will get their start by mortgaging their homes. The ability to use property as security is a critical mechanism for the poor and working classes to bootstrap themselves into the capitalist economy. At least, that's the argument in "The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else" by the Peruvian economist Hernando de Soto. AFAIU, in the intervening years many countries paid heed to his argument and instituted at least minor land reforms, for example making it possible to register transfers where prior records are defective or absent. But unless such reforms are self-executing (as with adverse possession or more modern statutes of limitation), I doubt such reforms are helpful in normalizing the informal property market. De Soto also makes the case that so-called squatter's rights were an important factor in the emergence of the American middle class, but that has little to do with adverse possession and more to do with rules set by the Federal government in land grants and when dealing with squatters on Federal land. Common Law adverse possession could never operate against the government without their consent. In modern America adverse possession usually comes into play in disputes over boundaries. A registered property line may have been two feet to the east, but for whatever reason a neighbor has been using that two-foot section as their own for many years, as probably previous neighbors did. When the error comes to light (e.g. maybe the registered title owner wants to build an extension to his house and hires a surveyor), adverse possession is used to settle ownership with the neighbor who has been adversely possessing the strip of land. That's a far cleaner solution than, e.g., an easement, which would just add unnecessary complexity to both neighbors' titles and invite future litigation by subsequent purchasers. On a similar note, I've read that clearing land to graze cattle in the Brazilian jungle primarily is for laying claims to plots of land purchased formally and informally, rather than for meat production. The presence of cattle is a de facto, and to an increasing extent de jure, proprietary claim on a piece of land. In a sense it behaves very much like adverse possession--the presence of cattle prevents someone else from using the land, given that fscking with someone's cattle can be a shooting offense (like in the American Old West). Some have argued that if there were more convenient ways to secure a claim on land, there would be less pressure to clear cut the jungle. Though, absent concrete evidence that alternatives would lead to less clear cutting, that sounds more like a libertarian talking point designed to appeal to liberals.