Title in the shadow of possession

Introduction Possession is an important source of rights in property law. Several common maxims reflect this importance (though not with the highest degree of precision). “Possession is the root of title,” we are told. “Possession is nine-tenths of the law” (Compare Chapter 2). In modern property law, possession can be an important source of legal property rights, both as a means of acquiring title, and as its own kind of independent property right. Possession can also support title owners by providing evidence of title where there is no more formal process for proving rights. A small but significant body of scholarship has sought to justify property law's use of possession as a key to acquiring greater property rights. In his classic article on the question of why property doctrines are so deferential to first possessors, Richard Epstein (1979) posited that first possession is an essential rule in property law primarily because it long has been used, and it provides for rapid dissemination of private property rights. Carol Rose (1985), by contrast, argued that first possession serves as a proxy for the dissemination of information about property claims, and thereby plays a key role in ensuring that claims of title are well known and clear. This chapter advances an entirely different justification for the importance of possession in property law. The chapter posits that rules of possession are important for maintaining the integrity and importance of a legal property system. Simply put, it is essential for the law to recognize de jure rights that already exist de facto, lest the legal system of property lose its salience. De facto possession, in many cases, offers nearly all the utility to possessors that they would enjoy if they were de jure owners. If the law did not recognize legal rights because of possession, many first possessors would find it advantageous to eschew legal rights, and protect their possessory rights extra-legally.