Content area
Full Text
INTRODUCTION....................1037
I. MENTALSTATESANDMORALITY....................1046
A. Mental States in Adverse Possession Law....................1046
B. Expanding the Taxonomy....................1049
C. mat's So Bad About "Bad Faith"?....................1053
II. ADVERSE POSSESSION AS A DOCTRINE OF EFFICIENT TRESPASS ....................1059
A. Adverse Possession's Modern Niche....................1059
B. Refining the Meaning of Efficient Trespass....................1065
C. Discouraging Inefficient Trespass....................1066
D. Encouraging (Very) Efficient Trespass....................1073
III. PRACTICALITIES, OBJECTIONS, EXTENSIONS ....................1077
A. Different Fact Patterns....................1077
B. Weighing Objections and Balancing Costs....................1084
C. Limitations and Extensions....................1091
CONCLUSION....................1095
INTRODUCTION
The "bad faith" adverse possession claimant-the trespasser who knows that the land she occupies is not her own1-is an anomalous figure in the law. While not disqualified from gaining title to land in many jurisdictions, the bad faith claimant tends to fare poorly in court2 and suffers regular drubbings in law review articles.3 Meanwhile, judicial and scholarly approval is lavished on her "good faith" counterpart, the encroacher who labors under the misimpression that he occupies his own land.4 In this Article, I challenge this consensus view. Instead of triggering moral condemnation and legal disadvantage, a claimant's knowledge of the encroachment should be a prerequisite for obtaining title under a properly formulated doctrine of adverse possession. Many courts and commentators have supported an objective standard under which both knowing and inadvertent encroachers can fulfill the "hostility" requirement in adverse possession law.5 But I go further to argue that only the claimant who knew that she was encroaching-and who documented that awareness6-should be able to take title to land through adverse possession.
This surprising position follows logically from a wide-lensed look at the appropriate place of adverse possession in the overall framework of modern property law. When considered as part of a system that contains other, superior mechanisms for addressing problems such as innocent improvements and old title defects,7 adverse possession can best be understood as a doctrine of efficient trespass.8 It should work in concert with legal remedies that apply before the statute of limitations runs to test the relative valuations of record owners and encroachers and to winnow out those situations in which consensual market transactions cannot accomplish transfers of land to much higher-valuing users.
The approach I take is not entirely unprecedented. Adverse possession's hostility requirement has sometimes been interpreted to disqualify people with an honest but mistaken belief in...