Adverse Possession And Easements

     This story out of England, which from the headline might appear an unconscionable travesty of justice, reveals facets that raise uncomfortable questions:

     The property originally belonged to Doris Curtis, who died in the 1980s and left her house to her son, Colin. Mr. Curtis moved out in 1996 to live in another inherited property but continued paying the tax on the Newbury Park house in East London.
     In 1997, a man named Keith Best noticed that the house was vacant and started renovating it. Best said he spent about $188,000 renovating the empty three-bedroom semi-detached house, eventually moving his family into the house in 2012.
     Best then filed an adverse possession claim to become the registered owner, according to The Daily Mail.
     The adverse possession law enables a trespasser occupying a property openly for an extended period, often 10 to 20 years, to then legally gain possession and title ownership.
     Colin Curtis launched legal challenges but he lacked sufficient legal grounds as the registered executor because his mother had not made a will.
     As Best demonstrated visible control of the house since 1997 without permission, arguing this met the legal time period threshold, a High Court judge overturned an initial ownership rejection and ruled in Best’s favor.

     The reporting above is less complete than it should be. The journalists involved may have failed to ask some critical questions:

• For how long was the house unoccupied before Best decided to seize it?
• Did Best know that the registered owner was still paying taxes on it?
• Did local government inform Best that Curtis was paying taxes on the house?
• When did Curtis learn that someone had seized his house?
• Did Curtis come to the house at any point after Best’s seizure?
• When did Curtis initiate the legal challenges to Best’s seizure of the house?
• Is anyone still challenging Best’s seizure of the house?

     Each of those questions bears vitally upon the legality of Best’s actions and the validity of Curtis’s challenges. Moreover, several specifics of English adverse-possession law are nowhere mentioned, neither in the Metro UK article nor the Daily Mail article. And while the episode is made to appear disturbing – “Pensioner deprived of his rightful property by squatter; film at eleven!” – what it points to is a complex subject in which few laymen take much interest.

     There are several approaches to the adjudication of property claims. None of them is perfect. Indeed, none of them are any good at all. (For clarity, adjudication refers to the process by which some third party rules on which of two contending parties owns a particular item.) But for today, let’s focus on the one that prevails in England and America: what Albert Jay Nock called “the State-system of land tenure.” It can be easily summed up:

     The rules and procedures for reaching such decisions may be formalized in law, but the essence of the thing remains: within its jurisdiction, the State has the final word on all property claims. The decision may be as involute as a multi-stage trek through a hierarchy of courts, or as simple as a wave of a king’s hand. Once the State has spoken, title has been conferred, and woe betide him who dares to dispute it.

     Others, including the great Robert Higgs, have argued that without the State, there can be no firm basis upon which property rights may rest. Yet the insertion of a third party into a property dispute introduces questions and considerations that would otherwise never arise. They may be summarized as follows:

     Which is nearly always the nub of the matter.

     In both English and American property law, Jones may challenge Smith’s ownership of a plot of real property by asserting that for a statutorily specified period, Smith has neglected the plot while Jones has lived on it, or has invested money and labor in it. In the United Kingdom, the statutory period is effectively twelve years. In America, the statutory period varies among the states. In some it’s as long as twenty years; in others, it’s as short as seven years. Other conditions also apply to determine whether the claim is valid.

     The English incident, and the conditions the reporting fails to mention, make plain the arbitrary nature of adverse possession law. The State has set the terms. Some judge will decide whether they’ve been met. Facts may be introduced in support of either contender’s claims, but the adjudicator may ignore or dismiss them. What matters are the ruling and the power of the State to enforce it.

     Behind the mess looms a seldom-discussed aspect of Lockean property-rights theory: the requirement that, to validate a property claim, the claimant must demonstrate adequate control over the property. If he cannot control it or has failed to demonstrate that control, his claim will be dismissed. This is sometimes called the “use it or lose it” rule. But while the rule looks fine at first glance, it raises another pair of questions: What constitutes adequate control? Who decides if that requirement has been met?

     Further arbitrariness! Just what we needed. But this underscores the critical aspect of the State-system. For it will be a government functionary, a judge, who will decide, and there are few rules about “adequate control” to constrain him.

     I’d intended to discuss easements as well, but I’ve already rattled on for a thousand words, so I’ll make this brief. An easement question arises when a claim other than ownership is asserted over a plot of land. In the most common case, the claim is to a right of passage. If Jones has been traveling unimpeded over Smith’s land for some statutory period – at one time it was seven years; I have no idea what it is today – he may claim that Smith’s noninterference with his transits constitutes a grant of easement. Once again, such a grant would establish Jones’s right of passage in perpetuity…if the State agrees. And once again, a government functionary, a judge, will decide whether Jones’s claim is valid.

     Whether, when, and how a claim of easement can be transformed into a claim for adverse possession is a subject for genuine legal scholars. I’m just an old man with too many opinions.

     The point of all this is the arbitrariness, of course: agent of the State Davis being authorized to decide whether Smith or Jones owns a plot that the State previously deemed Smith’s “rightful” property. Any system of adjudication will insert one or more third parties into such a controversy. There’s no way to avoid it. But what does that say about such systems a priori? How can any one of them be deemed inherently more just than the others? But if none of them is appreciably superior to the others, how are such claims to be resolved? Without bloodshed, that is.

     Just a few thoughts on a complex and annoying subject. And now if you’ll excuse me, my neighbor to the east has challenged me on my ownership of half my back yard. He claims I’m not really using it, and that the dog poop proves nothing. However, as he issued the challenge, I have the choice of weapons. Just now, I’m thinking sabers. Pray for me.