The moral paradox of adverse possession: sovereignty and revolution in property law.

• Author: Katz, Larissa
• Position: Canada

On what grounds can we justify the transformation of squatters into owners? "To understand the moral significance of adverse possession, the author proposes an analogy. Much of the moral analysis of adverse possession has proceeded on the basis that adverse possessors are land thieves. The author first explains why the analogy of adverse possessor to land thief is misleading. Then, she argues that there is a much closer analogy between adverse possession and revolution or, more precisely, a bloodless coup d'etat. The recognition of the adverse possessor's (private) authority solves the moral problem created by an agendaless object just as the recognition of the existing government's (public) authority, whatever its origin, solves the moral problem of a stateless people. The morality of adverse possession, seen this way, does not turn on any particularized evaluation of the squatter's deserts or her uses of the land. The author thus does not propose that adverse possession is justified in the same way that some argue a conscientious revolutionary is justified in resisting an oppressive or otherwise unjust sovereign. Rather, the morality of adverse possession is found where we might least expect it: in its positivist strategy of ratifying the claims to authority of a squatter without regard to the substantive merits of her agenda or her personal virtue.

Quelle justification peut-on offrir pour transformer des squatteurs en proprietaires? L'auteure propose une analogie pour comprendre l'importance morale de la possession adversative. Elle explique d'abord pourquoi l'analogie entre possesseurs adversatifs et voleurs de terre, qui sert souvent de premisse a l'evaluation morale de la possession adversative, est trompeuse. Elle soutient ensuite qu'une bien meilleure analogie existe entre la possession adversative et une revolution ou, plutot, un coup d'Etat sans effusion de sang. Le probleme pose par la chose sans objet est resolu par la reconnaissance de l'autorite (privee) du possesseur adversatif sur ladite chose, tout comme le probleme moral pose par un peuple sans Etat est resolu par la reconnaissance de l'autorite (publique) du gouvernement present. De ce point de vue, la moralite de la possession adversative ne depend pas des merites du squatteur, ni de l'usage qu'il fait du terrain. Ainsi, l'auteure ne suggere pas de justifier le possesseur adversatif comme certains justifient le revolutionnaire consciencieux parce qu'il resiste a un regime abusif ou injuste. La moralite de la possession adversative se trouve plutot la ou l'on s'y attend le moins: dans la strategie positiviste de ratification des revendications d'autorite du squatteur sans egard ni aux merites de ses objectifs, ni a sa vertu personnelle.

Introduction I. Three Models of Adverse Possession A. A Proceduralist Approach B. A Legal Moralist Approach C. An Inconsistent Use Model II. Revolution and Rehabilitation A. Justifying Adverse Possession B. Impact States, Imperfect Owners Conclusion Introduction

Property law is remarkably stable over time. Innovations in the form and content of ownership, for instance, are few and slow to catch on. (1) But that is not to say that property law, through its long history, has produced a clear and unequivocal understanding of what these fundamental concepts are. The idea of Ownership around which the law of property is organized is itself a subject of controversy. (2)

Adverse possession is one aspect of property taw that is caught in this controversy over the nature of ownership. Our idea of ownership influences how we answer basic questions about what it takes to succeed as an adverse possessor as well as more complicated questions about the morality of adverse possession. Seen one way, the law of adverse possession produces a radical transformation in the position of squatters pre- and post-limitation period, in some cases turning land thieves into owners. This approach, which I associate with the majority of American jurisdictions, sees adverse possession as morally paradoxical and so invites restrictions on deliberate squatting. (3)

Seen another way, the law of adverse possession concerns not the acquisition of new ownership rights by the squatter, but rather the extinction of the original owner's superior right to possess due to her own inaction. (4) The squatter, on this view, does not acquire a new kind of right but is successful by default. This approach, found in current English law, downplays the radical change in the squatter's position pre- and post-limitation period, thus avoiding some of the appearance of a moral paradox. But at the same time, the English approach ignores important conceptual differences between owner and possessor, treating them both simply as holders of rights to possess of differing strengths.

There is a third approach to adverse possession that I will argue makes sense of the morality of adverse possession without weakening the concept of ownership at work in the law. A basic component of this third approach is still the law in some Canadian jurisdictions and until recently had currency in much of the common law world, including England and Australia. (5) This is the inconsistent use test, according to which a squatter succeeds in a claim for adverse possession only where she establishes, by acts of possession that are inconsistent with the owner's intended uses of the land, that the original owner lacks effective authority over the land. (6) This standard presents a significant hurdle for most adverse possessors.

A conventional reading of the inconsistent use test reflects our moral intuition that deliberate squatters are land thieves, undeserving of reward. (7) On this reading, the inconsistent use test appears to respond to the same considerations that motivate the current consensus view in the United States. But, I will argue, it would be a mistake to construe the inconsistent use test as just a reflection of our distaste, on moral grounds, for acquisitive squatters. Rather, the inconsistent use test suggests a very different moral foundation for the law of adverse possession. On this approach, the morality of adverse possession is not a particularized morality, concerned with the relative deserts of the owner and squatter or the relative merits of the uses they have for the land. We are evaluating the wrong thing if we look to the nature of the use or the user to establish the morality of adverse possession. Rather, the morality of adverse possession is indirectly established through the role of adverse possession in allowing property law to serve its moral function.

A system of property puts an owner in charge of an object. Where no one has the authority to be in charge of an object, users may manage to avoid conflict in practice. But it is the potential for conflict that is avoided when one person (or group, in the case of communal property) has the supreme authority over an object of property.(8) An owner authoritatively co ordinates uses of an object by setting the agenda for it. (9) A squatter's inconsistent use exposes a vacancy in the property system--an object of property over which the original owner no longer has effective authority. The squatter justifiably succeeds insofar as he fills that vacancy.

This study of the law and morality of adverse possession suggests a new analogy for understanding the role of adverse possessor, not as a land thief nor as a deserving labourer, but rather as something akin to the leader of a bloodless coup d'etat (10) A successful adverse possessor assumes the mantle of ownership for much the same reason that a successful coup d'etat produces a government whose authority to rule is undiminished by the initial illegality of its path to power. The possibility of social order requires that someone wield ownership authority in the former case, and public authority in the latter. Adverse possession solves the moral problem of agendaless objects just as the recognition of the existing government (whatever its origins) solves the moral problem of stateless people.

The relationship between adverse possession and the legitimacy of post-revolution government is mostly one of analogy. But it is also more than this. Ownership, I will argue, is also a part of the larger system of public authority. It is part of the way that the state orders society. Of all the ways that the state relies on owners, the most important is the owner's function of setting the agenda for an object and so setting a framework that organizes the uses others can make of it. (11) Insofar as the social order is in part constituted by owners, the state needs to ensure that owners are doing what the state promises they will do (or else face a breakdown in the social order). The adverse possessor, having asserted effective authority over the object and displaced the original owner, assumes an indispensable role in the property system and also the larger system of public authority of which the property system is a part.

This paper proceeds in two parts. In Part I, I will provide an overview of the three models of adverse possession. In Part II, I will develop the analogy between adverse possession and a successful coup d'etat in order to explain the morality of adverse possession.

1. Three Models of Adverse Possession

   The common law has produced a rich and complex debate about the law of adverse possession and the concepts of possession and ownership on which it is based. I will begin by examining in more detail the models of adverse possession that dominate this debate and the strikingly different conceptions of ownership and possession on which they rely.

   1. A Proceduralist Approach

      The first model, recently adopted in England, (12) emphasizes the nonadversarial and procedural nature of adverse possession. On this view, the adverse possessor succeeds where she possesses and intends to possess the land (in the ordinary sense) for the requisite time period. The...