People often get the impression from friends or relatives involved in land fights that adverse possession is fundamentally wrong. End Adverse Possession Now has done its best to further this point of view. Yet, how do I come down on this question?

Impartially, adverse possession is both fundamentally right AND at present fundamentally flawed. As such, the doctrine of adverse possession should be altered to address its flaw but otherwise allowed to remain intact.

OK, now how could I possibly espouse the idea that adverse possession is right? Think of it this way. Sticking with the easiest method of demarcating a boundary – a fence – it’s not too hard to realize that there are only 3 (three) general places where the fence can be placed. In an ideal world, it is going to be placed flush with the boundary line. Now this may occur by complete happenstance. But more likely than not without the benefit of a survey this will not occur.

As a result, the only two other alternatives that this demarcation method can yield is that the fence is going to encroach (a) one way; or (b) the other. It’s as simple as that!

North or South; East or West; Left or Right – folks, it just doesn’t matter. At the end of the day, upon its discovery, the fence is going to be towards one neighbor and away from the other. Viewed in this light, which neighbor is the title holder and which is the adverse possessor is rather arbitrary … right?

Well, yes and no. If the fence was erected at what was reasonable believed to have been the boundary line, then adverse possession simply allows the neighbors, after a fairly lengthy period of time – the Statutory Period, to become settled. In other words, there is no reason to fight over property dimensions that have been long recognized on the ground.

That is to say if the fence was placed in such a way that was reasonable. The problem occurs when the placement of the fence, or other boundary demarcation, is placed unreasonably. In other words, what happens when one of the neighbors unreasonably seeks to take the land of another?

In these cases, my complete sympathy and willingness to fight for justice goes out to the people that might lose their land. In fact, it is because of this reason that adverse possession has been analogized to “legalized land theft.” But before we blindly buy into the idea that this is a “theft,” let’s step back for a moment and look at what the law requires. 

In any crime, there are two elements which are cloaked in latin that must be proved. These elements are: Actus Reus and Mens Rea.

Actus Reus a fancy way of saying that the criminal comitted the criminal act. So, in this context, the inquiry would be first: Was it the adverse possessor, as opposed to a predecessor in interest, who “stole” the land?

Mens rea is a fancy way of indicating a “scale of intentionality.” At the most nefarious degree, the criminal “purposely” seeks to effectuate his or her wrongful aim. A step down from this is “knowingly.” Further down the scale is “recklessly.” And at the bottom rung of this scale is “negligently.”

Interestingly, my recollection is that criminal law catagories the defense of “accident” to come under actus reus. In my opinion, this is absurd. Instead, accidents are extensions of mens rea‘s “scale of intentionality.” After all, every kid of 4 years and older knows his or her best defense is: “I didn’t mean to … it was an accident!”

In other words, at some point people can’t [or perhaps shouldn’t] be required to think through and then button down all possible risk. Instead, accidents can and do happen. And who is in the best position to pool the risk of accidents? Yes, you guessed it … insurance companies.

At any rate, mens rea in this context would require posing this second question: “Did the adverse possessor ‘wrongfully intend’ to take [i.e. ‘steal’ the land]?” And this further begs the question where should we define the break between negligence and accident? Do we want a survey to be preformed prior to every house sale? If so, perhaps the statute should reflect this requirement? Alternatively, might we allow purchasers to waive their rights to a survey if they are satisfied with the manifestation of the boundary on the ground? These are questions that should be carefully considered.

Bottom line, if we are to seriously attack adverse possession’s fundamental flaw of allowing land thieves room to operate without hurting people that have unintentionally adversely possessed the titled land of their neighbors for the requisite statutory period, we need to identify (1) who was the person that changed the boundary lines and (2) whether or not that change was unreasonably performed.

What do you think? Though I believe my thoughts are straight on the mark, I welcome your own thoughts and comments to help identify any gaps of logic.