Efficient Trespass: The Case for 'Bad Faith' Adverse Possession

Abstract

Modern legal scholars condemn the so-called bad faith adverse possessor - the encroacher who knows that the land she occupies is not her own. Commentators and courts that favor an objective standard for adverse possession's hostility element do so for purposes of simplicity and consistency, not because they perceive any merit in advantaging a knowing claimant. This Article challenges the consensus view by arguing that only the encroacher who knows that she is encroaching - and who documents that knowledge - should gain title through adverse possession. This surprising approach follows from reconceptualizing adverse possession as a doctrine of efficient trespass - a mechanism for moving land to a possessor who values it much more highly than does the record owner, where a market transaction is unavailable. While my affirmative case for a documented knowledge requirement rests on efficiency grounds, I also explain why my approach is not ruled out on moral grounds. Both the moral defense and the efficiency case depend crucially on recognizing adverse possession's position as one property doctrine among many. Other legal mechanisms can more effectively protect innocent improvers, reduce litigation, and provide security of title. By identifying the narrow niche that adverse possession fills in the overall legal framework addressing trespasses and titles, I offer an alternative vision of the doctrine that would retrofit it for modern use.