Rethinking Adverse Possession: An Essay on Ownership and Possession

In the wake of the present real estate crisis, there has been prolonged discussion of the wrongdoing that led to systemic failures in the national real estate market. The mortgage crisis caught the nation’s attention because of its large scale and its rippling effect throughout the economy. Equally nefarious is the impact of adverse possession on the rights of individual property owners. While a single adverse possession does not affect the national market in the same way as the mortgage crisis did, to the individual owner, the wrongdoing, in the form of a trespass, that ripens into title, is just as devastating. We should reexamine, more broadly, concepts such as adverse possession that result in loss of ownership and move away from those whose foundation is in wrongdoing. The article begins with a brief discussion of foundational concepts inherent in the adverse possession doctrine. It then analyzes four examples that demonstrate the impact of adverse possession: 1) the purchaser and the bona fide donee; 2) the co-owners; 3) the squatters; and 4) the erroneous deed. The article concludes by summarizing the policies that justify abrogating the adverse possession doctrine