108 Iowa L. Rev. 1149 (2023)



The ability to acquire the landownership rights of another through adverse possession is a fundamental part of American property law. Yet to laypeople, the adverse possessor often seems hardly more than a thief. In contrast, scholars have justified the doctrine on a number of grounds: as punishment against original landowners who fail consistently to fly flags of ownership and protect their rights; as a reward to the adverse possessor, who presumably is making a higher and better use of the land than did its original owner; and as an acknowledgement that the adverse possessor’s uninterrupted and continuous use over time—combined with a claim of ownership—leads to a psychological or emotional attachment held by the adverse possessor that far exceeds any such attachment held by the original owner.

While each of these justifications has merit when applied to realty that is freely alienable and whose use may change over time, the justifications are less convincing when applied to certain kinds of realty. Real property interests exist in which we do not reasonably expect the holder to engage in routine inspection against trespass; in which there will be no higher and better use over the course of time; and in which the psychological and emotional attachments of an interloper are less, or no greater, than those of the original owner. In these instances, the trespasser who knowingly claims title through adverse possession indeed seems much like a thief. In such instances, should traditional property rules apply? What role do equitable considerations have to play?

Wednesday, March 15, 2023