David Against Goliath: The Distributive Justification for the Adverse Possession Doctrine

The legal doctrine of adverse possession is recognized in most western jurisdictions. The doctrine enables the transfer of legal title to property upon the fulfillment of certain conditions, one of which is that the property should have been occupied without the owner’s consent. The origins of adverse possession can be found in several traditional justifications, all of which aim to explain the transfer of title from the owner to the possessor against the owner’s will. One justification seeks to punish owners for ‘sleeping on their rights’, another justification focuses on the possessors and their ongoing connection to the property and finally, a third justification explains the title transfer in utilitarian terms of aggregate welfare. While legislators and courts have used these traditional justifications for centuries, this article argues that they fail to provide a coherent basis for the continued use of the adverse possession doctrine in today’s world. In their modern day application, some of the traditional justifications collapse logically, while others fail to take into account changes in land-registry systems and technology.
Despite the failures of the traditional justifications for the doctrine, this article rejects the potential conclusion that the doctrine should be abandoned altogether. Instead, it is argued that a modern justification for adverse possession should be adopted, one that relies on the potential distributive effects of its implementation. Explanation is given for why this distributive justification is not be affected by changes in land registration, technology or, the reduction in the cost of obtaining information, which erode the doctrine's traditional justifications. To maintain consistency and avoid undermining the rule of law, this article provides alternative justifications that could be used by the courts to determine the proper implementation of the adverse possession doctrine.