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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

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.
- supernova87a 6y ago
  Wow, how complex and fascinating. I am further confused (although not surprised) that the states are all over the map (hah) in terms of duration of adverse possession taking effect: https://en.wikipedia.org/wiki/File:Adverse_possession_US.pdf https://en.wikipedia.org/wiki/File:Adverse_possession_US.pdf Are you in real estate law?
  - wahern 6y ago
    I went to law school mid career and really enjoyed property law, but returned to being a code monkey after graduation. Here are some interesting articles I just dredged up if you're more curious. I learned something new from the second paper; that the association of adverse possession with so-called squatters' rights might be peculiarly American, stemming from turn of the century land rushes where news about adverse possession wins by prospectors spread like wildfire. (AFAIU, the actual history was far more complex. Large land trusts were violating their Federal land grant terms, and "squatters" were often well placed to be granted a new title by the government. The politics of railroad land grants also add twists because at that point everybody, including Congress, was pissed with the railroads, so rules were tweaked to favor squatters. I suspect bone fide adverse possession cases may have been fewer than popularly imagined.) * Henry W. Ballantine, Title by Adverse Possession, December 1918, https://www.jstor.org/stable/pdf/1327641.pdf https://www.jstor.org/stable/pdf/1327641.pdf. From the introduction: "[T]he great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and to correct errors in conveyancing". * Itzchak Tzachi Raz, Use It or Lose It: Adverse Possession and Economic Development, June 2018, https://scholar.harvard.edu/files/iraz/files/Raz_UILI.pdf https://scholar.harvard.edu/files/iraz/files/Raz_UILI.pdf. From the abstract: "A reduction in the security of land right is also associated with an increase of investment in farms and improved access to capital markets, as well as with an increase in the share of owner-cultivated farms and mid-size farms. These findings suggest that the effect of property rights on economic development is not monotonic, and that property rights may be over secure." Of course, I wouldn't describe adverse possession as lessening the security of title. In many cases it strengthens title, incentivizing the development of land in your possession without fear of losing your investment. Such fear might exist even if you were the rightful title holder all along. Your chain of title might disappear into the fog of time, as Ballantine describes, and who knows what surprises lie there. Title warrants and title insurance can't compensate for time, sweat, and other reliance interests. (Civil Law jurisdictions' answer was to require title registration--no transfer is good unless and until sealed and formally recored by the government--but as I said that simply raises the stakes and often favors the wealthy, particularly the aristocracy with titles handed down from colonial or medieval times. Adverse possession is a self-correcting mechanism that works even when everything else breaks down--e.g. title archives are burned or forged. Title registration is the type of solution a programmer would come up with, unfamiliar with the thousands of potential failure modes.)

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.

supernova87a 6y ago
Wow, how complex and fascinating. I am further confused (although not surprised) that the states are all over the map (hah) in terms of duration of adverse possession taking effect: https://en.wikipedia.org/wiki/File:Adverse_possession_US.pdf https://en.wikipedia.org/wiki/File:Adverse_possession_US.pdf Are you in real estate law?
- wahern 6y ago
  I went to law school mid career and really enjoyed property law, but returned to being a code monkey after graduation. Here are some interesting articles I just dredged up if you're more curious. I learned something new from the second paper; that the association of adverse possession with so-called squatters' rights might be peculiarly American, stemming from turn of the century land rushes where news about adverse possession wins by prospectors spread like wildfire. (AFAIU, the actual history was far more complex. Large land trusts were violating their Federal land grant terms, and "squatters" were often well placed to be granted a new title by the government. The politics of railroad land grants also add twists because at that point everybody, including Congress, was pissed with the railroads, so rules were tweaked to favor squatters. I suspect bone fide adverse possession cases may have been fewer than popularly imagined.) * Henry W. Ballantine, Title by Adverse Possession, December 1918, https://www.jstor.org/stable/pdf/1327641.pdf https://www.jstor.org/stable/pdf/1327641.pdf. From the introduction: "[T]he great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and to correct errors in conveyancing". * Itzchak Tzachi Raz, Use It or Lose It: Adverse Possession and Economic Development, June 2018, https://scholar.harvard.edu/files/iraz/files/Raz_UILI.pdf https://scholar.harvard.edu/files/iraz/files/Raz_UILI.pdf. From the abstract: "A reduction in the security of land right is also associated with an increase of investment in farms and improved access to capital markets, as well as with an increase in the share of owner-cultivated farms and mid-size farms. These findings suggest that the effect of property rights on economic development is not monotonic, and that property rights may be over secure." Of course, I wouldn't describe adverse possession as lessening the security of title. In many cases it strengthens title, incentivizing the development of land in your possession without fear of losing your investment. Such fear might exist even if you were the rightful title holder all along. Your chain of title might disappear into the fog of time, as Ballantine describes, and who knows what surprises lie there. Title warrants and title insurance can't compensate for time, sweat, and other reliance interests. (Civil Law jurisdictions' answer was to require title registration--no transfer is good unless and until sealed and formally recored by the government--but as I said that simply raises the stakes and often favors the wealthy, particularly the aristocracy with titles handed down from colonial or medieval times. Adverse possession is a self-correcting mechanism that works even when everything else breaks down--e.g. title archives are burned or forged. Title registration is the type of solution a programmer would come up with, unfamiliar with the thousands of potential failure modes.)