Abstract
This article questions the current doctrine of adverse possession. Rather than viewing adverse possession as a method of acquiring land, adverse possession should instead create a rebuttable presumption of ownership. Section II of this article describes adverse possession and outlines its elements. This section, in describing how the doctrine works, provides a framework for discussing how and why the law should change. Section III of this article describes chazakah. Unlike adverse possession, chazakah serves not as a tool by which a person acquires land, but instead creates a presumption of ownership. The true owner, however, may rebut that presumption. Chazakah evidences a transaction and nothing more. It is not, by itself, a method of obtaining ownership in property. Simply proving the elements of chazakah will not result in ownership vesting in the adverse possessor. Section III concludes with an illustration of the difference between the doctrines by applying the facts from Nome 2000 v. Fagerstrom, to both adverse possession and chazakah. Sections IV and V respectively discuss the major justifications for and criticisms of adverse possession. Section VI explains how chazakah not only satisfies adverse possession's justifications but also escapes its criticisms, and explains why it is therefore a suitable alternative to adverse possession.
Recommended Citation
Note, Chazakah: Judaic Law's Non-Adverse Possession, 52 Clev. St. L. Rev. 623 (2004-2005)