Back to the Basics: Improved Property Rights can Help Save Ecuador's Rainforests

Georgetown International Environmental Law Review, Summer 2004 by Hite, Kristen

2. The case of Adverse Possession: Addressing the Needs of the Landless Poor

In Ecuador, the doctrine of adverse possession serves as a legal mechanism to address poverty, intended to give the landless poor a chance to claim title to the area in which they live. Adverse possession effects a transfer of State-sanctioned rights in land from owners to non-owners without the consent of the owner.78 When a case of adverse possession arises, someone loses land. The goal of adverse possession places the loss on the person who will suffer it least, namely the person whose roots are less vitally embedded in the land.79 Under Ecuadorian law, adverse possession becomes an option for real property under ordinary, uninterrupted prescription in five years.80 The Agrarian Development law accelerates this statutory period to two years, provided no title can be offered to challenge the adverse tenant's claim.81 There is considerable tension with this doctrine, however, because many historically indigenous lands have never been titled under Ecuador's national property system. Due to this tension, compounded by perverse incentives for unsustainable use, the doctrine of adverse possession must be carefully constructed.

Both adverse possession and the expropriation policies are problematic in Ecuador's Amazon region because enforcement of land titles favors unsustainable use. In some cases, the doctrine is welcomed as a mechanism to fight poverty and transfer land directly to the resident, landless tenants.82 On the other hand, adverse possession creates a number of incentives to destroy wilderness, given the requirement that the possession must be uninterrupted, open, and notorious.83 Laws that award land titles upon evidence that forested land has been "improved," usually by clearance and conversion to other uses, have the effect of maximizing short-term returns at the expense of more sustainable long-term investments.84 Non-landowning squatters use the slash-and-burn agricultural method with no incentive to ensure healthy regeneration of forest. As such, tenurial institutions governing privatization of forest land and enforcement of traditional use rights have been recognized as central to sustainable forest management, and under the given circumstances, the doctrine of adverse possession should proceed with the utmost caution in Ecuador's Amazon region.85

When the poor lack secure tenure, market competition for resource control yields further marginalization and threatens long-term conservation.86 A large number of low intensity resource users holding legally insecure use rights are subject to the tragedy of the commons problem of open resource access.87 Adverse possession provides a mechanism to transfer land to the resident landless tenants, who generally live in poverty. While this is in conflict with conservation due to the open and notorious use requirement, if the doctrine is sufficiently limited, it may nevertheless provide a manner by which to grant sufficient property rights to those individuals most marginalized. Until these landless residents can claim plots of land, conservation measures will prove less effective. As such, adverse possession is a necessary doctrine which should be implemented with extreme caution.88