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Unpublished Paper
Adverse Possession, Takings, and the State: The Confounding Problem of Government Adverse Possesssion
ExpressO (2011)
  • William Marra, Harvard Law School
Abstract

Adverse possession is one of the most fascinating areas of property law. Much has been written on the topic, but one of the most compelling questions regarding adverse possession has, remarkably, never been fully addressed in the literature: Should government be allowed to adversely possess land in the same manner as private individuals? And, relatedly, when the government adversely possesses land, does this constitute a constitutional ‘taking’ that requires the government to pay just compensation?

My article, Adverse Possession, Takings, and the State: The Confounding Problem of Adverse Possession, tackles these two important but ignored questions. Almost every jurisdiction permits the government to adversely possess private land just as a private might. But government adverse possessors are not similarly situated to private adverse possessors, and the laws of adverse possession are built on a trio of assumptions—the landowner has a property rule entitlement, the trespasser develops robust reliance interests, and society’s primary interest is in quieting title—that do not necessarily apply when the government is the adverse possessor.

In this Article, I demonstrate that each of the justifications for adverse possession do not apply with as much force when the government is the adverse possessor. I propose some modifications to the law of adverse possession to help remedy the current inequitable situation, which perversely incentives the government to trespass rather than declare eminent domain. Finally, I explore and ultimately reject the argument suggested by some recent commentators that when the government adversely possesses land, it commits a taking.

Keywords
  • Property,
  • Adverse Possession,
  • Taking,
  • Government
Disciplines
Publication Date
August 13, 2011
Citation Information
William Marra. "Adverse Possession, Takings, and the State: The Confounding Problem of Government Adverse Possesssion" ExpressO (2011)
Available at: http://works.bepress.com/william_marra/1/