PropertyProf Blog

Roman Property Law Comes Mainstream!

There’s a song in Fiddler on the Roof that begins, “Wonder of wonders, miracle of miracles.” That’s how I felt on May 26 when the word usucapion was called out at the Scripps National Spelling Bee.

U-S-U-C-A-P-I-O-N

Holy bovem, Batman! Roman property law has made its way into popular culture! Who saw that coming? Certainly not the hundreds of students I have taught at Tulane who generally groan when I discuss the Corpus Juris Civilis. Hell, I never thought that Roman modes of acquiring ownership through possession would make it to the big time, but last Thursday it happened. Roman property law was front and center. And on ESPN, no less!

As a person who writes in comparative property law and thus manages to make generally old doctrines that date back to the 1200s even older by talking about their Roman roots, I felt like this when I heard the word called out. When I saw Twitter posting after Twitter posting on the topic, I started singing "I'm so excited."  (My apologies to those of you who were also staying at the Hawthorn Suites in Champaign, Illinois and got stuck hearing my outburst.)  

It was all pretty darn cool.

Unfortunately Snehaa Ganesh Kumar misspelled usucapion (she spelled it usicapion, which is super close, but the National Spelling Bee is way more serious than horseshoes or hand grenades). That’s okay. You are still a rock star in my book, Snehaa! In fact, your misspelling of the word brought more light to the ancient Roman concept, because let’s face it, who remembers the words the spelling bee contestants spell correctly?

Now that we can all spell usucapion, it is worth talking about what it means. Usucapio in Roman law was the idea that possession of a corporeal thing for the requisite period of time could ripen in to dominium (full ownership) of the thing. The need for some means of acquiring ownership through possession arose in Roman law because of the strictness and inconvenience in how property, and particularly land, was conveyed. Usucapio, then, provided a private method of ensuring the transfer of ownership of land, even when there was a defect in the title.

Usucapio applied on to Roman citizens, though eventually a similar concept, prœscriptio, was developed for foreigners to acquire property. To acquire ownership through usucapio, one had to be in good faith (bona fiedes) and have a lawful origin for claiming ownership (iustus titulus). Property that was stolen could not be acquired through usucapio. Similarly, violence could not be used to acquire property via usucapio. Initially, the period of possession required for usucapion was only two years for immovable property like land, and one year for movable property. Eventually, though, Justinian altered the time periods to require ten years of possession if the true owner of the property as present, and twenty years of possession if the true owner was absent.

Usucapion, as is evident by now, is the analog for our modern doctrine of adverse possession. My guess is that most people won’t introduce usucapion into their 1L property classes. Having introduced the concept to my 1Ls before, my experience is that it doesn’t go over as well in practice as I think it will, but maybe that’s just me. Suffice it to say, I’ve never had a student say, “Wow, that’s so cool. Will you teach us more Roman law, please?” But, in thinking about modern adverse possession law, it is always helpful to remember the original purpose and application of the Roman equivalent. I know of no state in the United States that requires more time of possession when the true owner is away from his property, but if a goal adverse possession is trying to achieve is to put the true owner on notice that someone has a competing claim for her land, should we give the true owner more time when she is away? Or does our purpose of keeping land in commerce trump so that the reverse should be true? Should good faith matter? Lots of jurisdictions believe it does. Were the Romans right on that point? All great questions to think about as we continue to ponder the doctrine of adverse possession.

So thank you Scripps Spelling Bee and Snehaa for reminding us about the ancient origins of the modern doctrine. And a big thanks for making Roman law cool to talk about, even if only for a passing moment.

Kids Learn the Darndest Things About Property Law

I am in recovery.

Recovery from spending two back-to-back weekends chaperoning eight-year-old girl sleepovers.

During the last weekend of April, I took my daughter and her Brownie Troop camping. Sure, thirteen little ones look cute standing on the dock making funny faces after fishing, but at 3pm when the heavens open and you are standing amid a rain storm with a group of screaming second graders, they are not quite as adorable. Or when 2am rolls around and the girls are like whac-a-moles—you get one in the tent in her sleeping bag and another one pops up. Again, not the precious angels shown here.

The next weekend (aka three days ago), my daughter had a sleep over to celebrate her eighth birthday. There were games, there were ice cream sundaes, there were high-pitched squeals. There was staying up until the wee hours of the morning to make sure the girls stayed down all night, and there was waking up before sunrise because, well, the girls were up and I like the downstairs of my house too much to let them have unsupervised control over it for any lengthy period of time.

While chaperoning these weekends of elementary school bliss, I realized that I could teach the better part of my 1L property class to the girls using the experiences they were having. It was a real life, in the moment type of class a la Jerry’s field class at the University of Idaho. It was, in the words of Tony the Tiger, grrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrreat.

I started at the very beginning, asking “what is property?” The girls looked at me like I was crazy, but then, so do my 1Ls when I ask the same question. Are your thoughts property? Is your persona property? Is your body property? All of these questions were dealt with during my chaperoning weekends.

8-year-old #1: (high-pitched yelp) She’s touching me! She’s touching me!
8-year-old #2: (higher-pitched yelp) She started it! She touched me first!
Me: (after drinking a sip of beer) Everyone keep your hands to yourself. Your body is yours, though we don’t want to call your body your “property” as that has negative connotations. But you have full rights to exclude everyone else from your body, unless parts of your body or organs have been removed, in which case you have no rights to them. See Moore.
8-year-olds #1 and #2: (looking at me like I have two heads) Huh?
Me: Well, you see there was a guy in California . . . . (8-year-olds run off, having forgotten what they were fighting about and now sharing the common thought that I’m nuts, not unlike my 1L property students)

Next, I taught about the Tragedy of the Commons.

Me: (putting out four large, family-sized bags of potato chips that were sufficient to feed an army) Snack time!
All 8-year-olds: (gulping down chips like they have not been fed for days) Gimme! She got more chips than I did! (munch, munch, munch) I want more! (smack, smack, smack)
Me: Sigh. (drinks longer sip of beer) I will divide the chips into even amounts for you, otherwise you will overconsume the chips out of fear that someone else will get your chips, thereby depleting all of our chips, and leaving us with no more snack time resources. This is a good time for me to tell you a story. Gather ‘round everyone for a cattle-grazing tale by a man named Garrett Hardin . . .
My 8-year-old: (whispering) Mom, please don’t embarrass me.
Me: Siiiiiigh. (opens another beer)

Then we moved into what makes up the proverbial bundle of sticks of property rights by first looking at the right to exclude.

8-year-old #1: (in a whining voice because she has a belly ache caused by overconsuming chips) She’s laying on my sleeping bag and pillow!
8-year-old #2: (in an equally whiny voice) I like yours more than mine. Let’s trade.
8-year-old #1: I want mine! Make her give me mine!
Me: Everyone has to use their own sleeping bag. No one touch other people’s stuff. Your sleeping bag is your own personal, private property so you have the ability to exclude everyone else from your sleeping bag.
8-year-old #1: (whispering in my 8-year-old’s ear) What is your mom talking about?
My 8-year-old: (opens her eyes wide, glaring at me with that “please be quiet” look) Mooooooom!

Having multiple kids sleeping in the same tent naturally leads to a discussion about the right to include.

8-year-old #1: (tears streaming down her face) They won’t (sob) let me (sob) in the tent!
Me: Everyone in the tent come out.
Three girls come out, looking sheepishly.
Me: You can’t exclude anyone from the tent. Everyone gets the right to use the tent. The tent is like a public thing or a quasi-public thing. Everyone has a right to . . .
8-year-old #1: (no longer crying) Do y’all want to go fishing?
All 8-year-olds: YAY! (they run off)
Me: Sigh. (shotgun second beer)

Fishing brings us to a lesson in the rule of capture.

8-year-old #1: I caught a fish! I caught a fish! I caught a fish! (waiving around a fishing rod with a small bass hanging on the end, still stuck on the hook)
Me: Hold still and let me take the fish off the hook. (insert mild expletives under my breath as I get stuck by the hook while removing the fish) There! (throw the fish into the bucket that is holding all of the fish)
8-year-old #2: Ooooh! I want your fish! (sticks hands in the bucket)
8-year-old #1: She’s touching my fish!
Me: Don’t bother the fish. That’s her fish because she caught it. When you capture something that is a res nullius, like a wild bass, it becomes yours under the rule of capture. The rule of capture is really fascinating because . . .
8-year-old #3: We’re catching tadpoles over here!
8-year-old #1 and 2: FUN! (recently caught fish is dropped on the ground and jumps around, finding its way back into the lake before I can grab it)

Catching tadpoles with nets allowed for a lesson in future interests and, shocking as it may be, the RAP (or at least the fundamental ideas behind the RAP).

8-year-old #1: (to 8-year-olds #2 and 3) You can use the net now, but after y’all use it, you have to give it back to me.
8-year-old #4: I want a turn!
8-year-old-#1: I gave the net to 8-year-olds #2 and 3 and then I get the net back.
8-year-old #4: (looking at me) She won’t let me have a turn!
Me: (looking at 8-year-old #1) You can’t control who uses the net that long after it’s been in your possession. You can only control the use of the net for 21 minutes after your possession of it because otherwise you would be exercising too much long-term control over the net and for the good of all of us on this camping trip, we want the net to be more transferable and usable by lots of different people so . . .
8-year-old #2: People are going hiking! Let’s go! (drops net into the lake such that I have to wade in to grab it)

Eventually, the fishing, tadpole-hunting, and hiking came to an end and we commenced roasting weenies and s’mores. I brought with us some long roasting sticks and put them out for the girls to use, which prompted a good discussion on adverse possession.

8-year-old #1: (tugging on my shirt while pointing at essentially all of the other 8-year-olds) She took my roasting stick!
Me: (thinking “why did I agree to be the Brownie Troop leader?”) Are you sure it was yours?
8-year-old #1: (confidently) Yes! (pointing aimlessly at the table behind her) I put my stick on this corner of the table three hours ago and told everyone not to touch it, but she (again, pointing at the collective group) picked it up and has been using it to roast two hot dogs and four marshmallows.
Me: (taking a deep breath) She’s been possessing the stick for a pretty long time. I think the stick is now hers. After you adversely, physically, openly possess property for a long enough period of time, that property becomes yours.
8-year-old #1: That’s not fair.
Me: I know it seems unfair, but there are a lot of reasons we say the adverse possessor gets the property. It requires you, the true owner, to pay attention to your marshmallow roasting stick instead of just leaving it, unattended on the table. It creates stability in title so 8-year-old #2 eventually can be confident the roasting stick she’s using is hers and won’t be taken away. It encourages her to use the roasting stick and develop it, shape it, bend it, into the best roasting stick she can make . . .
8-year-old #1: Chocolate!!!! (runs off when a new box of Hershey chocolate bars is opened)
Me: Sigh. (realizes beer is not strong enough so opens up flask of bourbon)

Finally, we all learned about the virtues of easements.

Me: Okay girls, everyone get in their sleeping bags and close their eyes. It’s time to go to sleep.
8-year-old #1 moves her sleeping bag to be right in the pathway I’ve created for the girls to exit the tent
Me: Put your sleeping bag back where you had it. We need to leave a pathway for folks to get out of the tent.
All 8-year-olds in unison: (in a voice that says “I’ll do anything to stay awake a little longer, even listen to your crazy lectures”) Why?
Me: Well, someone may need to potty in the middle of the night, so we need to have an easement so y’all can exit the tent. When you have an easement, you cannot block the use of that easement because . . .
All 8-year-olds: Zzzzzzzzzzzzzz.

There you have it. Property 101 through the eyes of an 8-year-old. We didn’t quite cover everything—I haven’t yet figured out how to work mortgages into the conversation—but we covered a lot. The conversations didn’t go exactly as I’ve described above. The girls were not nearly this whiney, in fact they were all actually pretty good, and while I'm not a particularly cool mom, I am a cool enough mom to not mention Garrett Hardin to my daughter’s friends. But all of the general activities described above did occur and the girls had a great time, which may be more than I can say for all of my 1Ls. Who knows, maybe they even took away a few lessons in property law.

Adverse Possession, Takings and the State

William Marra, Harvard Law School, has posted Adverse Possession, Takings, and the State on SSRN.

Here's the abstract:

Normally, the government may not seize private land without paying for that land. Yet it turns out that governmental bodies sometimes avail themselves of the laws of adverse possession, taking title to private land without paying the landowner. This phenomenon, largely ignored by the scholarly literature, raises two questions. First, should the government be allowed to adversely possess land in the same manner as private individuals? Second, when the government commits adverse possession, does this constitute a constitutional “taking” that requires the payment of just compensation? These two questions are of practical importance because they affect the resolution of numerous property claims, and they are of theoretical significance because they implicate both the appropriate scope of private property rights and the proper relationship between the individual and the state. Part I provides an introduction to adverse possession, and Part II studies the law of government adverse possession, detailing how nearly every jurisdiction permits the government to adversely possess private land in the same manner as private individuals. But as Part III demonstrates, government adverse possessors are not similarly situated to private adverse possessors, and the laws of adverse possession are built on a trio of assumptions — that the landowner has a property rule entitlement to her land, that the trespasser develops robust reliance interests, and that society’s primary interest is in quieting title — that do not necessarily hold when the government is the adverse possessor. Part IV concludes that because the current rules of adverse possession incentivize government trespass upon private land, special rules should apply to the government. When the government adverse possessor trespassed in good faith, a longer statute of limitations should apply; when the government trespassed in bad faith, it should be entirely denied the right to adverse possession. One quick fix to the problem, proposed by a federal court and endorsed by some commentators, is to call government adverse possession a constitutional taking and require the state to pay just compensation. Part V explains that the problem cannot so easily be wished away, and contends that the text of the Constitution, its history, and Supreme Court precedent all suggest that government adverse possession is not a taking. The solution to the problem presented by government adverse possession rests in righting property law, not distorting constitutional law.

By way of comparative comment:

• It is interesting how "takings" issues are such a significant part of constitutional discourse in the US, and in my nearer neighbour, Australia.  New Zealand, without a formal written constitution, and without any "takings" provision, is in a different world in this sense.  I have recently been exploring how the absence of this regime makes it easier to "propertise" resources (and also regulate them without having to worry about compensation issues) for a forthcoming article for the New Zealand Universities Law Review.
• Adverse possession was a part of my NZ Land Law course, as it remains part of US property courses.  In New Zealand the law is statute based, and there would be very few adverse possession cases in New Zealand: one of the recent ones concerned a fairly isolated block of farm land with a fence in the wrong place (rather than the "squatter's rights" (of an abandoned house, for example) I imagined at law school).
• Marra hasn't steered away from takings.
• An empirical study of adverse possession (comparative, Commonwealth or otherwise) would seem to deserve attention.
• 

Thomas Gibbons

Closing the Gates to Adverse Possession

The New York Times reports on how private landowners who open their property to the public fend off adverse possession claims:

Lever House has been closing itself once a year since 1953, when it was the brand-new headquarters of Lever Brothers. On Sunday, temporary barricades are to be erected, bearing signs saying: “This area is closed to public use on behalf of and in the name of the owner.” Some time later, an employee who was present will sign an affidavit attesting to the closing.

Steve Clowney

(photo of the Lever House courtyard found with creative commons search)

Adverse Possession -- A Unique Solution to the Foreclosure Crisis?

The NY Times has a piece today on Mark Guerette, an enterprising person in Florida who sought out homes in working-class neighborhoods that were apparently abandoned by the banks.  He sent letters to the record owners and lenders, informing them that he planned to take over the homes, renovate, and lease them.  He now manages and leases 17 homes, even paying the property taxes that are due.  The renters, who are getting a bargain, love him.  The neighbors seem pretty happy that the homes have been fixed up and are occupied.  The government (and presumably the lenders) aren't so happy.  Mr. Guerette is scheduled to go on trial next month in North Lauderdale on fraud charges.

This is a pretty interesting case and I plan to use it when we discuss adverse possession in Property.  Mr. Guerette seems to have done a lot of things correctly within the rules of the doctrine of adverse possession.  He gave notice to owners and mortgagees, he disclosed to the tenants in writing that he wasn't the legal owner of the property, he fixed up the homes and paid property taxes. 

And I thought adverse possession was a fairly dead doctrine!

Tanya Marsh

[Comments are held for approval and may be delayed]

 

Brown and Williams on Adverse Possession

Carol Necole Brown (UNC - Chapel Hill) and Serena Maria Williams (Widener) have posted Rethinking Adverse Possession: An Essay on Ownership and Possession on SSRN.  Here's the abstract:

In the wake of the present real estate crisis, there has been prolonged discussion of the wrongdoing that led to systemic failures in the national real estate market. The mortgage crisis caught the nation’s attention because of its large scale and its rippling effect throughout the economy. Equally nefarious is the impact of adverse possession on the rights of individual property owners. While a single adverse possession does not affect the national market in the same way as the mortgage crisis did, to the individual owner, the wrongdoing, in the form of a trespass, that ripens into title, is just as devastating. We should reexamine, more broadly, concepts such as adverse possession that result in loss of ownership and move away from those whose foundation is in wrongdoing. The article begins with a brief discussion of foundational concepts inherent in the adverse possession doctrine. It then analyzes four examples that demonstrate the impact of adverse possession: 1) the purchaser and the bona fide donee; 2) the co-owners; 3) the squatters; and 4) the erroneous deed. The article concludes by summarizing the policies that justify abrogating the adverse possession doctrine.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Unlawful Possession and the Foreclosure Crisis

I dislike the word 'squatting' because we tend to use it to mean unlawful possession we don't like; unlawful possession we do like we call 'pioneering' or, if it continues for long enough, perhaps 'adverse possession.'  Therefore, to describe unlawful possession as 'squatting' is to end the debate over the morality of any particular form of unlawful possession before it begins.

Let's talk about the morality of unlawful possession.

The foreclosure crisis has increased at least four types of unlawful possession of homes.  Which, if any, do you consider 'wrong'?  Why?

(1) Possessors of their former homes, whom lenders have not removed.

Lenders who have foreclosed on properties are increasingly refraining from evicting former owners, who now are in unlawful -- and rent free -- possession of their former homes.  100,000 former homeowners are living in their foreclosed properties in the Inland Empire area of California alone.  The glut of foreclosed homes on the market makes a quick sale of many properties unlikely.  An occupied home holds its value better than an unoccupied home, which often deteriorates from neglect.  So even though lenders may claim they are merely being kind (which they sometimes do), they have a strong financial incentive not to evict the former owners.      

(2) Possessors of their former homes, who refuse to leave despite lenders' efforts.

Some former owners remain in possession of foreclosed upon properties, refusing to leave unless forcibly evicted by the local sheriff, despite demands from their lenders that they vacate.  In fact, Congresswoman Marcy Kaptur has urged them to do it.  Refusing to leave extends their possession -- perhaps indefinitely.  The sheriff of Wayne County, Michigan has refused to carry out forcible evictions of former owners.  The sheriffs of Cook County, Illinois and Cuyahoga County, Ohio have refused to forcibly evict renters in properties that have been foreclosed.   

(3)  Possessors of empty homes, who care for the property.

Take Back the Land and other advocacy groups have begun placing homeless families in vacant homes in neighborhoods where foreclosures have become common. The group screens the families, and requires them to earn sweat equity in the properties by cleaning them and repairing them.  The families in unlawful possession are sometimes welcomed by neighbors, because they care for the properties, preserving the value of surrounding homes and keeping vandals at bay. 

(4)  Possessors of empty homes, who do not care for the property.

In some places, foreclosed upon homes have been unlawfully possessed by drug users and thieves, who use the homes as drug dens and bases of criminal operations. 

Now, I suspect most people -- but not all, by any means -- would find unlawful possession of type 1 morally unobjectionable, and unlawful possession of type 4 morally objectionable.  Do you agree?

But where does the line fall between types 2 and 3?  Is the critical factor the external benefits provided by unlawful possessors -- benefits to neighbors and, ultimately, us -- that determines the morality of their possession?  Or is their behavior intrinsically moral or immoral?

I would love to hear your thoughts.

Mark Edwards

[Comments are held for approval, so there will be some delay in posting]