The Many Faces of Adverse Possession: Economic and Empirical Analyses of Laws in 156 Jurisdictions

Abstract

Acquisitive prescription, a broader concept than adverse possession, is adopted in at least 130 jurisdictions in the world, and the doctrine dates back to Roman law. This article first surveys the wide variety of designs of acquisitive prescription in the world, and then uses economic analysis of law to further examine the merits of these various designs. Contrary to many prior works, this article argues that the most justifiable form of acquisitive prescription is a registration-based one with title and good-faith requirements — Possession, however, is redundant, even creating undesirable results. Given that boundary disputes can be left for another doctrine, possession-based acquisitive prescription, no matter whether possessors are in good faith or bad faith, can hardly be justified in economic terms in countries with well-functioning registrars, if they do not have title. Possession-based acquisitive prescription can only be justified in countries with dysfunctional registrars.

Keywords: Acquisitive prescription, registration of title, recording (recordation), hostile possession, color of title, ownership, liability rule, mechanism design

JEL Classification: K11