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

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. First, 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. Second, it will provide valuable additional means by which the public may monitor the performance of government employees, and additional discipline to governments tempted to allow their aspirational commitments to outstrip their fiscal capacities. As an added benefit, it can achieve these ends without posing any threat to emergent environmental values, while serving as a positive support for effective government conservation efforts. Moreover, once adverse possession is recognized as a process of abandonment and recapture, and is applied to government entities as well as to private, opportunities arise to employ the doctrine expansively for the protection of property and liberty interests against aggressive overregulation and overcriminalization. The doctrine can become a tool for tempering and restraining burgeoning zoning and other property- and liberty-curtailing regulations by declaring regulations that have gone long unenforced in the face of broad, open public violation to be abandoned and unenforceable. Perhaps most intriguingly, it can provide a secure foundation in the American legal system for the doctrine of desuetude, by which long-violated and long-unenforced criminal prohibitions lose their restrictive capacity.