Adverse Possession by the State: Toward Remedial Equivalency

John Lovett*, Björn Hoops

*Bijbehorende auteur voor dit werk

OnderzoeksoutputAcademicpeer review

70 Downloads (Pure)


When governments embark on public projects, sometimes mistakes happen. A government might mistakenly construct part of a road or some other publicly owned facility on land that is owned by a private person without condemning that land. When this kind of mistake happens and a landowner does not object for a long period of time and a dispute later arises, the governmental entity will sometimes assert that the doctrine of adverse possession vests title in the disputed land in favor of the government or that the doctrine of common law prescription establishes an easement in favor of the government. U.S. courts almost universally recognize that these well-established common law doctrines can benefit governmental entities. Some commentators, however, have criticized the majority view of U.S. courts and called for a ban of adverse possession or prescription by the state or have recommended that a governmental entity should pay just compensation when it acquires property interests using these doctrines.

In this article, we reject most of these critiques because they underestimate the importance of adverse possession and prescription by governmental entities to the functioning of the legal system and overestimate the danger of abuse. Analyzing not only U.S. law, but also five European jurisdictions, we argue that adverse possession and prescription by the state serves to put an end to conflicts over land, corrects defective titles, encourages private owners to be vigilant about their property rights, and respects the bonds than can develop between members of the public with land that has long been occupied or used by the public. We argue that a prohibition against adverse possession or prescription by the state or the imposition of a compensation requirement would stand in the way of achieving these goals. Meanwhile, the published case law gives no indication of widely spread abuse. Building on the insights of some critics of government adverse possession, however, we do offer some modest recommendations for change in the law. In particular, we explain that private landowners faced with an unauthorized government intrusion often lack a powerful suite of remedies—especially when it comes to an action in ejectment—to combat an unauthorized government intrusion before the statutory periods for adverse possession or prescription have run. We thus propose several recommendations to achieve remedial equivalency and bring U.S. law in line with the private law of the European jurisdictions we consider.
Originele taal-2English
Aantal pagina's130
TijdschriftLoyola Law Review
Nummer van het tijdschrift1
StatusPublished - 2022

Citeer dit