This Article examines the concept of “play” (at its simplest, human beings doing things for fun or recreational purposes) in the context of adverse possession law. Specifically, it looks at how adverse possession law in the United States has treated the adverse possessor’s mere (or sole) recreational use of land. This Article makes two arguments: one descriptive and one normative. The descriptive point is that courts across the United States have historically treated sole recreational use by adverse possessors of disputed land inconsistently. The normative argument is that courts should give more deference and weight to “play”—or recreational use of land—when adjudicating adverse possession cases. This approach would bring adverse possession jurisprudence more in line with the predominant justifications for the adverse possession doctrine as a whole. The concept of “play” has made inroads in other areas of legal scholarship, such as in arguments for: a constitutional right to play sports; a recognized fundamental right of play in American jurisprudence using online gaming; and the importance of “play” in the American judiciary’s protection of vulnerable minorities. Still, it has not made inroads in property law. At its core, this Article hopes to correct this.
Author
Professor of Law, Peking University School of Transnational Law; Affiliated Scholar, Transnational Legal History Group, Center for Comparative and Transnational Law, Chinese University of Hong Kong.
Copyright 2024 by Norman P. Ho
Cite as: Norman P. Ho, Play and Adverse Possession, 119 Nw. U. L. Rev Online. 222 (2024), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1348&context=nulr_online