Abstract

http://ssrn.com/abstract=1627343
 


 



Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture of Property and Liberty Interests


Scott Andrew Shepard


The John Marshall Law School

June 19, 2010

University of Michigan Journal of Law Reform, Vol. 44, p. 557, 2011

Abstract:     
Adverse possession doctrine labors under a pair of disabilities: a hesitancy by theorists to embrace the abandonment-and-recapture principle that informs the doctrine, and a substantial unwillingness of governments to abandon an antiquated and outmoded maxim shielding them from the doctrine’s important work. Removing these disabilities will allow a series of positive outcomes. It will demonstrate that all would-be adverse possessors, not just those acting “in good faith” or with possessory intent, should enjoy the fruits of the doctrine. It will provide needed discipline to governments the commitments and intentions of which outstrip their realistic capacity, without – if properly understood – posing any threat to emergent environmental values. Moreover, when applied not only to individual adverse possession, but also to adverse possession by and for the public generally, it will allow burgeoning zoning and other property- and liberty-curtailing regulations to be tempered by restraints which have arisen in the context of private zoning-regulation regimes (such as condominium and subdivision associations). Perhaps most intriguingly, it will provide a secure foundation in the American legal system for the doctrine of desuetude, by which long-violated and long-unenforced restraints on liberty lose their restrictive capacity.

Number of Pages in PDF File: 68

Keywords: Adverse Possession, Zoning, Desuetude, Home-Owners' Associations, Abandonment, Capture, Waiver, Property Law, Criminal Law

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Date posted: June 20, 2010 ; Last revised: June 6, 2011

Suggested Citation

Shepard, Scott Andrew, Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture of Property and Liberty Interests (June 19, 2010). University of Michigan Journal of Law Reform, Vol. 44, p. 557, 2011. Available at SSRN: http://ssrn.com/abstract=1627343

Contact Information

Scott Andrew Shepard (Contact Author)
The John Marshall Law School ( email )
315 S. Plymouth Court
Chicago, IL 60604
United States
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