It is no secret that adverse possession is a controversial doctrine. In contrast, its close relative—prescription—is far less notorious and divisive. Both doctrines are similar in that they allow longstanding possession or use to ripen into ownership or other property rights. But they are also dissimilar in a number of ways. For example, they have different historical origins, and the requirements that claimants must meet under each doctrine only partially overlap. The most crucial difference is one that courts and scholars have traditionally described as follows: Adverse possession applies to possessory rights—such as life estates or fees simple absolute—whereas prescription applies to nonpossessory rights—such as easements, profits, and water rights.
At first glance, this distinction seems coherent and useful, but closer scrutiny exposes its flaws. It is implicitly premised on the erroneous assumption that the difference between possessory and nonpossessory rights is clear-cut, when, in reality, it is not. This Article shows that many of the challenges that courts have encountered in this context result from relying on this traditional view, which is based on the understanding that the divide between possessory and nonpossessory rights is binary or discrete. As a close examination of the case law reveals, however, property rights exist on a continuum with varying levels of exclusiveness and breadth of use. In some areas, judicial efforts to reach sensible outcomes while simultaneously trying to follow the traditional framework have led to new sets of problems, including uncertainty and unfairness. In others, courts have simply disregarded this framework, further revealing its limited practical value.
This Article makes two distinct but related suggestions to resolve these issues. First, state legislatures should unify adverse possession and prescription into a single doctrine: acquisitive prescription. This will allow courts to avoid the unnecessary complications that result from having to choose between two doctrines that do not capture the true variability that property rights display. Second, legislatures should tailor the requirements to acquire property rights by continued use or possession to the specific nature and characteristics of each right, rather than to whether they are possessory or nonpossessory. Doing so will add nuance where it is most needed. By crafting not just two—but multiple—frameworks, legislators and judges will be able to distinguish more precisely between rights based on where they are in the exclusiveness/breadth-of-use continuum. These changes should also exempt those who, at the time the reform takes effect, have already started using or possessing the property of another.
