11

I understand that, in the United States, adverse possession is a legal (but very rare) way to take ownership of someone else's real property against their will.

What I don't understand is how this is materially different from theft, other than that it has to take place over a period of time determined by statute, and then is recognized as legal.

Say, for example, I squat in a remote outbuilding on a large rural property, where I'm noticed by the owner at some point but neither evicted nor given permission to be there. Over the course of some period of years, I minimally maintain the outbuilding while living there, and perhaps park my car on the property near the outbuilding, and the owner sees all this from afar but thinks I'll just leave. I don't pay property taxes, I don't have an address for separate mail delivery and for whatever reason—perhaps the owner is non-confrontational to a fault—I'm left alone.

After the period of time required in my state for a claim of adverse possession, the title-holder wants to raze the outbuilding and calls the sheriff to have me evicted. I oppose the eviction on the basis of adverse possession, am able to argue my case to the court's satisfaction, and ultimately become the owner of the outbuilding and the land it's on.

What makes this different from theft?

I know that certain conditions have to be met in terms of what constitutes possession, what makes it adverse and so on. (Someone once told me in casual conversation that "you have to be paying the property taxes for them" but I think this is just one of several ways to demonstrate a de facto claim of ownership?) I'm looking for some insight into the common-law system that explains why the distinction even exists.

5

Your question is addressed in the opening paragraph of Ballantine, Title by Adverse Possession 32:2 Harvard Law Review 135–159 (1918):

Title by adverse possession sounds, at first blush, like title by theft or robbery, a primitive method of acquiring land without paying for it. When the novice is told that by the weight of authority not even good faith is a requisite, the doctrine apparently affords an anomalous instance of maturing a wrong into a right contrary to one of the most fundamental axioms of the law.

Ballatine explains that, as mentioned in other answers, adverse possession is a species of limitation period. The rationale for the doctrine is not economic. It was developed to promote finality and certainty.

It has been suggested, on the other hand, that the policy is to reward those using the land in a way beneficial to the community.³ This takes too much account of the individual case. The statute has not for its object to reward the diligent trespasser for his wrong nor yet to penalize the negligent and dormant owner for sleeping upon his rights; the great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing.⁴

Footnote 4 cites a line of American authorities dating back to 1817, as well as some notable secondary sources, including Mill, Principles of Political Economy (1848) 2:2, § 2:

According to the fundamental idea of property, indeed, nothing ought to be treated as such, which has been acquired by force or fraud, or appropriated in ignorance of a prior title vested in some other person; but it is necessary to the security of rightful possessors, that they should not be molested by charges of wrongful acquisition, when by the lapse of time witnesses must have perished or been lost sight of, and the real character of the transaction can no longer be cleared up. Possession which has not been legally questioned within a moderate number of years, ought to be, as by the laws of all nations it is, a complete title. Even when the acquisition was wrongful, the dispossession, after a generation has elapsed, of the probably bonâ fide possessors, by the revival of a claim which had been long dormant, would generally be a greater injustice, and almost always a greater private and public mischief, than leaving the original wrong without atonement.

These commentaries give us some insight into what American lawyers thought about adverse possession in the 19ᵗʰ century. However, the broad concept of adverse possession is much older than this. It existed in ancient Rome, and was called usucapio.

  • There have been many useful answers since I first asked this question but this is exactly what I was looking for. – Air Jun 12 '17 at 16:13
  • Exactly. The purpose of adverse possession is not to make it easy to take advantage of old Farmer BIll's non-confrontational nature and obtain one of his barns, but to prevent old defects in title from causing legal trauma today. Suppose you own land, and someone comes up to you today with some high-powered attorneys ($$$$), claiming that his great-great-great grandfather did not legally convey the land to your g-g-g grandfather on account that your relative was one week shy of the legal age to buy land. His claim fails because this should have been resolved decades ago. – Robert Columbia Jun 25 at 15:21
16

The technical difference is that theft is illegal, and adverse possession is not. I'm assuming you're talking about why there's a difference. Historically, there are two basic reasons for adverse possession.

First, land lasts for a very long time, and a sale is generally invalid unless the seller has valid title. That means that no property title is secure, because someone could always come out of the woodwork with a claim that your great-great-great-grandfather threw their great-great-great-grandfather off the land 300 years ago. Not only is all land title insecure, but you might not even be able to defend such a claim (do you know the history of your land for the past 300 years?) Adverse possession, then, is a way to let people know no one else can claim title to their land based on something so long ago no one remembers properly. Even with modern public land registries (which did not always exist), this situation can still arise if someone mistakenly believes that they own some land and starts using it.

The second reason is that if someone isn't doing anything with the land for a long time, and someone else is doing something useful with it, the government would rather give it to the person doing something useful. People who lose property through adverse possession are unwilling to take the extremely minor steps needed to keep their property. It tends to move land from totally nonproductive users to productive users, and then keeps those nonproductive users from kicking out people who improved the land and keeping the improvements.

The notion that leaving something for too long removes your right to claim it is not restricted to real estate. Almost everything in law has a time limit of some sort.

  • 6
    Adverse possession also provides one process to resolve surveyor errors or changes in the natural environment – user662852 Aug 21 '15 at 21:04
  • 6
    In a way, adverse possession is more akin to "finding abandoned goods" than "stealing from a shop". – Mark Aug 25 '15 at 2:35
7

The distinction exists because land is special. There is only so much of it and the law encourages productive use of land. The nineteenth century ideology which nurtured adverse possession prioritized economic development.

There's that and there's also the goal of avoiding stale claims. You can't sleep on your rights. We have similar rules for physical property - abandonment laws.

So I'd say it's a bit of both.

Some would argue that American jurisprudence intentionally shifted the law from one which protected the true owner to one which encouraged exploitation and national expansion.

*Also aligned with the productivity theory is the current movement to apply adverse possession to intellectual property viz copyright.

  • Some would argue... - really? How so? I'd also be interested in a pointer to more information about "the current movement to apply adverse possession" to IP, if you have one. – Air Aug 21 '15 at 4:05
  • 2
  • 1
    Adverse possession of tangible personal property is also possible, although it comes up less often in legal proceedings since it usually isn't worth litigating over and the record keeping to prove a claim usually isn't as good. – ohwilleke Jun 9 '17 at 18:56
3

Most importantly, adverse possession can arise from circumstances that would not constitute theft because there is a lack of criminal intent.

Often, adverse possession arises from a good faith mistake regarding the legal boundary line or from the state of title that no one is aware of until the adverse possession deadline has run.

For example, a surveyor might direct a property owner to put a boundary fence in a particular place based on a survey that inadvertently and without the conscious knowledge of the surveyor, used the wrong monument to start measuring the boundary from and as a result advised his client that the boundary line was 15 feet further from the client's house than the true boundary line. When someone wants to build a new driveway in the neighborhood thirty years later, the mistake is discovered.

No one had the criminal intent necessary to commit theft, but the land was nonetheless adversely possessed.

Another example would be a case where a property owner thought that the land he was selling was in his own name, but it was actually in the name of a company he owned a 100% interest in, so he drafted a deed from him to the buyer rather than from the company to the buyer, and no one caught the mistake until much later.

Again, criminal intent is absent.

Many states, although I'm not sure if it is a minority or majority rule, expressly limit adverse possession, at least, to cases in which the person currently in possession of the property has acted in good faith at all times, and at least some require that showing as to everyone in the chain of title relied upon to establish adverse possession. In other states, even a knowing thief acting willfully in bad faith can adversely possess property.

Of course, the most obvious distinction is that theft is a legal wrong which can be prosecuted if committed as a crime, while adverse possession is a curative doctrine used to determine who owns the property at a given time rather than to punished or affirmative sue someone. Adverse possession is a doctrine used to determine the status quo.

Adverse possession can also be conceived of as a form of statute of limitations. It is the ultimately deadline after which any lawsuit for theft or trespassing can no longer be brought against someone who violated the law.

For example, suppose that I shoplifted a key ring from a store in 1989. By 2017, the statute of limitation on prosecuting a case for theft of that key ring has long run, and adverse possession serves as the statute of limitations for the previous owner (the store) to bring an action to seek the return of the keychain that previous belonged to it to it.

Where I live, the adverse possession period for land is usually eighteen years, but the adverse possession period for tangible personal property is three years. So, three years after I stole the key chain, in 1993, when it is too late to bring criminal charges for theft or to bring an action to repossess the key chain. It then becomes my property legally (if I don't live in a "good faith" rule jurisdiction). In this way, it serves the same purposes as statutes of limitations in general. Those who sit on their rights lose them.

1

One way to help grasp something arcane and odd like Adverse Possession is to look at a more real-world example.

I don't have a cite readily available, but there was a case in NH where an abutting landowner had for many years availed themselves of a "shortcut" path across a corner of a large field. Use of this shortcut path was constant, almost daily, and easily discernable to the landowner, though it had never been discussed. The landowner at some point erected a fence, and the abutter filed suit, claiming that a right-of-way had been established based on adverse possession. The abutter prevailed and an easement was recorded on the deed (and a gate was installed for the path).

It's easier I think to grasp why adverse possession "works" based on this smaller case...a right-of-way is a property right which can be established via common usage. Incidentally a right-of-way can be extinguished through lack of use as well.

  • How much time generally has to pass between the first use of the path and the fence being installed? It's not like you can arrange a fence to built at the drop of a hat (especially if permits are required). Do the presence of no trespassing signs change anything? – Andy Sep 8 '15 at 22:52
  • 1
    @Andy, adverse possession requires a long timeframe in most every jurisdiction, though it varies. I believe in NH, USA it is 20 years, though that's completely off the top of my head. – dwoz Sep 9 '15 at 22:07
  • 1
    Some jurisdictions (such as Scotland) rights of way are separate from adverse posession. Even if the landowner maintains title to the land, after a certain period of public use, the owner cannot prevent the public from traversing the path. en.wikipedia.org/wiki/Right_of_way#Scotland – Max Nov 3 '15 at 10:00
  • @Max, yes, that's the point. a right-of-way is a conditional, "small-scale" property right...if you have a right-of-way, you have a small but definite ownership interest in the land. Adverse possession, however, is not an ownership right, it's a MECHANISM (one of many) by which rights become shuffled. – dwoz Nov 3 '15 at 17:17
0

You have mismatched concepts. You should be thinking TRESPASS; not THEFT (or CONVERSION in civil terms or LARCENY the classical criminal term).

Adverse possession is essentially a trespass that the owner has not acted upon.

0

"Theft" is taking something without the owner's knowledge or consent.

"Adverse possession" is taking something (land) with the owners knowledge.

If the owner knows, and doesn't say "I want it back," (legally), the owner has given (implied) consent to your taking it (under the law).

-2

Theft is defined as the physical removal of an object that is capable of being stolen without the consent of the owner and with the intention of depriving the owner of it permanently.

http://www.britannica.com/topic/theft

Real property is not "... capable of being stolen ...".

  • Identity theft would seem to be a trivial counterexample. – Air Aug 21 '15 at 0:26
  • 5
    @Air the crime that is described as "identity theft" is fraud, not theft. – Dale M Aug 21 '15 at 1:06
  • Then it seems I need better terminology to describe the unlawful possession of real property. I would choose "trespassing" but it seems to me that adverse possession by definition follows from trespassing, rather than contrasts with. Suggestions welcome. – Air Aug 21 '15 at 1:13
  • 4
    @DaleM Theft certainly doesn't have to involve physical removal of an object. If you forge a wire transfer from someone, that is often considered theft. In California, fraudulent appropriation of real property is theft (section 484, penal code). England, same thing. Britannica is not a legal dictionary. – cpast Aug 21 '15 at 1:16
  • @cpast The tags say "common-law"; what I have given is the common law definition which still applies in say New South Wales. Also, wire transfer is theft at common law because it permanently deprives someone of something (money). The UK Theft Act 1968 has a different definition, I am happy to accept that the California penal code does too. – Dale M Aug 21 '15 at 4:03
-2

I am not a lawyer, but this seems like a statute of limitations law.

Assume I took your lawn mover... thirty years ago. If you went to cops today, they would tell you that you should have come to them sooner.

Same with real estate.

protected by Community Jun 9 '17 at 0:45

Thank you for your interest in this question. Because it has attracted low-quality or spam answers that had to be removed, posting an answer now requires 10 reputation on this site (the association bonus does not count).

Would you like to answer one of these unanswered questions instead?

Not the answer you're looking for? Browse other questions tagged or ask your own question.