Efficient Trespass: The Case for "Bad Faith" Adverse Possession

By Fennell, Lee Anne | Northwestern University Law Review, Spring 2006 | Go to article overview

Efficient Trespass: The Case for "Bad Faith" Adverse Possession


Fennell, Lee Anne, Northwestern University Law Review


INTRODUCTION....................1037

I. MENTALSTATESANDMORALITY....................1046

A. Mental States in Adverse Possession Law....................1046

B. Expanding the Taxonomy....................1049

C. mat's So Bad About "Bad Faith"?....................1053

II. ADVERSE POSSESSION AS A DOCTRINE OF EFFICIENT TRESPASS ....................1059

A. Adverse Possession's Modern Niche....................1059

B. Refining the Meaning of Efficient Trespass....................1065

C. Discouraging Inefficient Trespass....................1066

D. Encouraging (Very) Efficient Trespass....................1073

III. PRACTICALITIES, OBJECTIONS, EXTENSIONS ....................1077

A. Different Fact Patterns....................1077

B. Weighing Objections and Balancing Costs....................1084

C. Limitations and Extensions....................1091

CONCLUSION....................1095

INTRODUCTION

The "bad faith" adverse possession claimant-the trespasser who knows that the land she occupies is not her own1-is an anomalous figure in the law. While not disqualified from gaining title to land in many jurisdictions, the bad faith claimant tends to fare poorly in court2 and suffers regular drubbings in law review articles.3 Meanwhile, judicial and scholarly approval is lavished on her "good faith" counterpart, the encroacher who labors under the misimpression that he occupies his own land.4 In this Article, I challenge this consensus view. Instead of triggering moral condemnation and legal disadvantage, a claimant's knowledge of the encroachment should be a prerequisite for obtaining title under a properly formulated doctrine of adverse possession. Many courts and commentators have supported an objective standard under which both knowing and inadvertent encroachers can fulfill the "hostility" requirement in adverse possession law.5 But I go further to argue that only the claimant who knew that she was encroaching-and who documented that awareness6-should be able to take title to land through adverse possession.

This surprising position follows logically from a wide-lensed look at the appropriate place of adverse possession in the overall framework of modern property law. When considered as part of a system that contains other, superior mechanisms for addressing problems such as innocent improvements and old title defects,7 adverse possession can best be understood as a doctrine of efficient trespass.8 It should work in concert with legal remedies that apply before the statute of limitations runs to test the relative valuations of record owners and encroachers and to winnow out those situations in which consensual market transactions cannot accomplish transfers of land to much higher-valuing users.

The approach I take is not entirely unprecedented. Adverse possession's hostility requirement has sometimes been interpreted to disqualify people with an honest but mistaken belief in ownership of the land in question.9 Yet modern cases and commentary overwhelmingly eschew any requirement that a person realize that the land she occupies does not belong to her.10 Courts often distance themselves from any doctrinal requirement that would reward "thieves" over those who acted in good faith." Likewise, modern scholars register amazement that courts would ever require bad faith,12 and overwhelmingly argue that good faith claimants should be favored by the law.13 At one level, then, the argument presented here offers a belated justification for a now-discredited judicial position.14 But, more than that, the Article suggests a different way of thinking about adverse possession's place in the constellation of property doctrines.

Specifically, I explore how state of mind requirements relate to what I view as the niche goal of adverse possession-moving land into the hands of parties who value it much more highly than do the record owners,15 where markets cannot do so. …

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