Question

What policy reasons exist for adverse possession to be a way to get title to a property? Are there policy reasons why we shouldn't allow this?

Answer 1

Here are the policy reasons exists for adverse possession to be a way to get title to a property as follow:

1. Social order – encourage productive use of land

      a. Encourages property owners to use their land or risk losing it

2. When an AP loses something, the people hurt are often third parties who have relied on the appearance of a state of things

     a. ie mortgage companies

3. Quiets title – at one level, AP is all about a statute of limitations

    a. If somebody once had a claim, they no longer have it

     b. Theory: people who own land aren’t more deserving of statutes of limitations than anyone else

4. Holmes idea – the deeper instincts of man

     a. Social utility maximization: people who have things like to keep them

     b. Taking something away is more harmful to a person than them not getting something new of equal value

5. Social stability rationale

    a. Avoid quarrels

    b. If one party does nothing for a long time while another party invests effort, we don’t want to take away from the latter party

6. Get land into commerce so people can buy with reasonable assurance that it’s theirs

Here are the policy resason for not allowing adverse possession as in the United States, no ownership rights are created by mere possession, and a squatter may only take possession through adverse possession if the squatter can prove all elements of an adverse possession claim for the jurisdiction in which the property is located.

As with any adverse possession claim, if a squatter abandons the property for a period, or if the rightful owner effectively removes the squatter's access even temporarily during the statutory period, or gives his permission, the "clock" usually stops. For example, if the required period in each jurisdiction is twenty years and the squatter is removed after only 15 years, the squatter loses the benefit of that 15-year possession (i.e., the clock is reset at zero). If that squatter later retakes possession of the property, that squatter must, to acquire title, remain on the property for a full 20 years after the date on which the squatter retook possession. In this example, the squatter would have held the property for a total of 35 years (the original 15 years plus the later 20 years) to acquire title.Depending on the jurisdiction, one squatter may or may not pass along continuous possession to another squatter, known as "tacking". Tacking is defined as "The joining of consecutive periods of possession by different persons to treat the periods as one continuous period; esp., the adding of one's own period of land possession to that of a prior possessor to establish continuous adverse possession for the statutory period." There are three types of Privity: Privity of Contract; Privity of Possession; and Privity of Estate. One of the three types of privity are required for one adverse possessor to "tack" their time onto another adverse possessor in order to complete the statutory time period. One-way tacking occurs is when the conveyance of the property from one adverse possessor to another is founded upon a written document (usually an erroneous deed), indicating "colour of title." A lawful owner may also restart the clock at zero by giving temporary permission for the occupation of the property, thus defeating the necessary "continuous and hostile" element. Evidence that a squatter paid rent to the owner would defeat adverse possession for that period.