Property Rules, Liability Rules, and Adverse Possession

The law of adverse possession tends to be regarded as a quiet backwater. Both judicial opinions and leading treatises treat the legal doctrine as settled. The theory underlying the doctrine, although routinely discussed in the opening weeks of first-year property courses, is only rarely aired in the law reviews any more. Indeed, the most frequently cited articles on adverse possession date from the 1930s and earlier. Perhaps most tellingly, adverse possession seems to have completely escaped the attention of the modem law and economics movement – almost a sure sign of obscurity in today\u27s legal-academic world. Nevertheless, two recent events – one academic, the other judicial – are sufficiently challenging to our conventional understanding of adverse possession that they deserve comment. The academic event is the publication of a law review article by Professor Richard Helmholz of the University of Chicago concerning the state of mind that a possessor must have before he can obtain title by adverse possession. Earlier treatments of this subject tended to proceed normatively, asserting the correct rule based on considerations of policy. Helmholz, however, is interested in determining what state of mind is actually demanded by courts before they will award title by adverse possession. To this end, he has surveyed the bulk of all reported cases dealing with adverse possession decided since 1966. His conclusion is rather startling. Although academic commentators generally argue that the subjective mental state of the possessor should be irrelevant, Helmholz finds that where courts allow adverse possession to ripen into title, bad faith on the part of the possessor seldom exists. Where the possessor knows that he is trespassing, valid title does not accrue to him simply by the passage of years