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Tuesday, August 18, 2009

Katz on Adverse Possession

Larissa M. Katz (Queen's University Ontario) has posted The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law on SSRN.  Here's the abstract:

On what grounds can we justify the transformation of squatters into owners? To understand the moral significance of adverse possession, we need to begin with the proper analogy. Much of the moral analysis of adverse possession has proceeded on the basis that adverse possessors are land-thieves. I will begin here by explaining why the analogy of adverse possessor to land-thief is misleading. Following that, I will argue that there is a much closer analogy between adverse possession and revolution or, more precisely, a bloodless coup d’ état. The recognition of the adverse possessor’s (private) authority solves the moral problem created by an agenda-less object just as the recognition of the existing government’s (public) authority, whatever its origin, solves the moral problem of a state-less 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. I am thus not proposing 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.

Ben Barros

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http://lawprofessors.typepad.com/property/2009/08/katz-on-adverse-possession.html

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Comments

This is a false argument, as there is no moral paradox to adverse possession. Simply asked, is it right to take something that was not paid? If that is true, then you would have to agree that stealing is morally right. If it is morally reprehensible to take something without paying for it, then adverse possession is morally wrong.

Even the United States Founding Fathers knew that the State could not take land without "just compensation." This is a basic concept of fundamental fairness.

Clouding the discussion with efficient land use theories and squatter's rights obfuscates the truth, which is legalized land theft is morally wrong - just as the Slavery Acts were wrong. True, there reams of bombastic discussions and analysis to support slavery, but the moral paradox was nonexistent. Slavery, like adverse possession, is morally wrong. End of analysis.

Posted by: Christopher McKie | Aug 18, 2009 11:04:03 AM

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