Thursday, February 18, 2010

Adverse Possession as Public Service (and Should Intent Really Matter)?

An interesting story in yesterday's Tampa Tribune tells the tale of a man who has been renting out houses he doesn't own.  Apparently, his modus operandi has been to find vacant homes (usually in or heading for foreclosure), fix them up, change the locks, and rent them out to tenants.  He also files a "Memorandum of Adverse Possession" for the properties with the county clerk.  All was well, it seems, until a real estate agent (who also happens to be a part-time deputy sheriff) attempted to show one of the homes being possessed.  This led to an investigation, after which, the man was arrested for fraud.  His defense:  he was within his legal rights under the law of adverse possession, which he was utilizing in a good faith effort to clean up blighted neighborhoods, provide affordable housing, and stabilize the housing market.  He also claims that he "ran the idea by a few lawyers," who allegedly told him it was a "gray area" but didn't tell him not to do it.

In addition to the fascinating facts, the story is also interesting from a doctrinal standpoint.  The man's defense, whatever its merits, is that his actions were taken with pure motives to do public good.  The local sheriff, when responding to this claim, also spoke in terms of intent, describing the law of adverse possession as only protecting people who possess others' land mistakenly .  This, of course, raises the well-worn question of whether adverse possession should be based on the subjective intent of the possessor (and if so, in what way), or whether objective possession (regardless of intent) should be enough.  For those interested in the competing theories of how to answer the question, as well as its relation to the abandonment of real property, two recent papers (an article and a student note) should provide a good place to start.  See Lior Jacob Strahilevitz, The Right to Abandon, 158 U. Penn. L. Rev. 355 (2010) (SSRN link is here) and Christopher H. Meredith, Note, Imputed Abandonment:  A Fresh Perspective on Adverse Possession and a Defense of the Objective Standard, 29 Miss. C. L. Rev. 257 (2010).

Mike Kent

P.S.  Thanks to Stetson Law students Leighton Hyde and James Kannard for bringing the story to my attention.

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On the right to abandon, I'd also recommend Eduardo Penalver's recent article on the subject:

Posted by: Ben Barros | Feb 18, 2010 12:12:04 PM

Professor Kent,

Thanks very much for the citation. I've recently been able to digitize my article and make it available online. Anyone interested may access it here:
Imputed Abandonment: A Fresh Perspective on Adverse Possession and a Defense of the Objective Standard

Posted by: Christopher Meredith | Feb 15, 2011 9:52:48 AM

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