Article Title

Adverse Possession and Subjective Intent: A Reply to Professor Helmholz

Publication Title

Washington University Law Quarterly


It might be supposed that there is no longer anything worth saying with respect to the legal doctrine of "adverse possession." Recently, however, in an effort to explain "the large volume of litigation on the subject" between 1966 and 1983, Professor R.H. Helmholz undertook a survey of the cases decided during that period to "test the possibility that subjective factors have continued to play an important role in litigation," contrary to "the view that looks to pure possession as the relevant test," which he characterized as "the dominant view among commentators on the law of real property." Professor Helmholz's principle conclusions are that: (1) "the accrual of a cause of action" against the adverse claimant and in favor of the true owner is "irrelevant" in most adverse possession cases; (2) "the bulk of recent cases require... formulation of the rule [as to adverse possession so as to recognize] the relevance of the subjective intent of the possessor in determining whether or not he may validly acquire title by the passage of the statutory period [of limitation]; (3) "[tlhe cases ...do not show that the adverse possessor must plead and prove that he [actually] acted in good faith... [b]ut the cases do clearly show that the trespasser who knows that he is trespassing stands lower in the eyes of the law.., than the trespasser who acts in an honest belief that he is simply occupying what is his already." Professor Helmholz's conclusions differ so greatly from generally accepted views as to justify a careful look at the cases on which he based his conclusions. The remainder of this Article is therefore devoted to an analysis of these cases and a critique of his conclusions.