Whose Land Is It Anyway?: It's Time to Reconsider Sovereign Immunity From Adverse Possession

Abstract

The topic of sovereign immunity from adverse possession is largely unexplored. This Comment addresses the issue, specifically focusing on whether such sovereign immunity is justified by public policy, and conversely, whether the traditional justifications for adverse possession apply with equal force in the context of government-owned land. First, government land is not sufficiently different from privately held land to justify its sovereign immunity from adverse possession. The traditional judicial arguments for sovereign immunity of certain municipal land, as well as the arguments that government-owned environmental land and land held as an investment deserve special protection from adverse possession, are examined and rejected. Next, considering the realities of government administration, the threat of adverse possession could actually motivate government to use its land more efficiently. The substantial benefits, including accountability for the effective use of government-owned land, are contrasted with the low costs of subjecting government land to adverse possession. These costs include land lost to adverse possession and the costs of monitoring government land that the threat of adverse possession would require. Finally, equity requires that the government, which may take title to privately owned land under doctrines akin to adverse possession, subject its own land to adverse possession.

14_49UCLALRev447October2001
By uclalaw