Tacking in a Mixed Jurisdiction
Nothing so Practical as a Good Theory: Festschrift for George L. Gretton 162 (Andrew Steven ed., Avizandum 2017)
16 Pages Posted: 17 Jan 2018
Date Written: January 16, 2018
This book chapter addresses a key moment in the development of Louisiana’s law of acquisitive prescription. For one hundred and forty years, Louisiana courts had held that a possessor in bad faith could cumulate her possession with that of a prior possessor in good faith for purposes of establishing ten year acquisitive prescription regardless of whether the two possessions were linked by particular or universal succession. In Bartlett v. Calhoun, 412 So.2d 597 (La. 1982), the Louisiana Supreme Court reversed course and held that a subsequent possessor who acquires her possession by particular title must have all the statutory characteristics and conditions required for ten year acquisitive prescription. In other words, a bad faith possessor cannot tack her possession to the good faith possession of a prior possessor for purposes of achieving ten year acquisitive prescription if the subsequent possessor acquires possession by particular title.
This book chapter analyzes the doctrinal background preceding the decision in Bartlett, comments on the significance of the decision, reveals the dispute’s surprising final outcome, and responds to the decision’s critics, arguing that the alleged doctrinal asymmetry produced by the decision has not troubled subsequent Louisiana courts and explaining why the decision has acquired its own canonical weight in Louisiana property law. The book chapter concludes by providing a brief comparative excursion into Scots law of positive prescription, demonstrating that Scots law would solve the factual problem presented in Bartlett by focusing judicial inquiry on questions related to the authenticity of an allegedly forged deed rather than the good faith of a second possessor.
Keywords: Tacking, Acquisitive Prescription, Adverse Possession, Louisiana Property Law, Property Law, Comparative Law, Mixed Jurisdictions
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