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

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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