Adverse commoning: Tracing contested legal geographies of the urban commons

Under threat of enclosure in rapidly gentrifying cities, some urban commoners are turning to legal tactics to ward off dispossession. In this article, I explore the contested legal geographies of urban commoning, considering some of the challenges, stakes, and opportunities that emerge in the effort to gain legal recognition. Specifically, I examine the use of the doctrine of adverse possession by Philadelphia gardeners to claim title to the community farm they cultivated as an urban commons for decades. In the context of a neoliberal settler colonial city, I argue that the gardeners’ adverse commoning, involving an il/legal counterclaim to property, facilitates consideration of the ways urban commoners are both enrolled in normative property regimes and have the potential to resist these regimes through errant performances of proprietary continuity, exclusivity, notoriety, and hostility.

9. Adverse Possession

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter investigates in detail adverse possession. The acquisition of title by adverse possession consists of two distinct stages: first, the inception of adverse possession; and, secondly, the operation of limitation rules at the end of the requisite period of adverse possession. The concept of adverse possession reflects ideas underlying unregistered titles. The operation of adverse possession is generally incompatible with the ideas underpinning registration of title and this led to significant reforms in the Land Registration Act 2002 (LRA 2002). The LRA 2002 provides a new scheme of adverse possession through which title is obtained by registration, rather than by possession. A criminal offence of squatting in a residential building was introduced in 2012, but it has been held that the commission of the offence does not preclude a claim to title by adverse possession under the LRA 2002. Adverse possession rules have also been held to be human rights compliant.

Bona fides (poštenje posjeda) kod zastare (praescriptio acquisitiva) i dosjelosti (usucapio) – prilog raspravi o suodnosu kanonskog i hrvatskog prava

The author analyses bona fides, or possession in good faith, as a prerequisite of the canonical praescriptio acquisitiva and the adverse possession as set forth in contemporary Croatian law in their interrelationship. The problem stems from the fact that the Treaty between the Holy See and the Republic of Croatia on legal matters, being an international treaty and thus having precedence over Croatian laws according to the Croatian constitution, in certain circumstances allows for a direct application of canon law within the Croatian legal system. The aim of this paper is to analyse whether this also applies to bona fides in adverse possession, and if so, in which way exactly. The canonical praescriptio in the context of the Roman legal tradition is analysed first in order to clarify certain terminological and conceptual discrepancies between canon law and Croatian law in this field. Bona fides regarding usucapio and praescriptio of Roman law and the Roman legal tradition is then particularly addressed. The central part of the paper deals with canonical bona fides, where it is specifically noted that it is a stricter standard in comparison to good faith as found in Croatian law. Canon law requires positive good faith throughout the whole required prescription period, meaning knowledge or a reasonable possibility of knowledge of having a right to possess, not infringing the right of another thereby. On the other hand, Croatian law requires knowledge or possibility of knowledge at the outset, while later on only acquired knowledge will render possession illicit. In addition, the Croatian standard of good faith is conceived more simply in comparison to the twofold canonical standard, i.e. only as the absence of knowledge or possibility of knowledge of not having a right to possess. Although both systems presume good faith, those differences may prove crucial if an interested party (owner of property being prescribed) offers evidence to the contrary. Finally, our analysis of the Treaty between the Holy See and the Republic of Croatia on legal matters revealed that the canonical standard of bona fides should be applied whenever a juridical person of the Catholic Church in Croatia acquires property by means of adverse possession, but by all accounts also when any other person acquires Church property in the same way.