Thursday, July 16, 2009

Penalver on the Illusory Right to Abandon

Eduardo M. Penalver (Cornell) has posted The Illusory Right to Abandon on SSRN.  Here's the abstract:

The common law of property supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forego any future claim to it. In contrast, the law has also traditionally prohibited the abandonment of possessory interests in land. On the rare occasion it is even discussed, this disparate treatment is usually treated as a puzzle that needs to be explained. In this essay, I argue that this way of framing the question misunderstands the structure of abandonment law. Viewed through the lens of land, the (prospective) right to abandon any form of tangible property, even chattels, is an illusion. This is because the legal prohibition of abandoning land, when coupled with the law of trespass, dramatically qualifies the unilateral right to abandon any property (even chattels) almost to the point of insignificance. On this view, the common law’s treatment of land is not an anomalous restriction within a legal regime that otherwise empowers owners freely to abandon their property. Instead, the inability to abandon land forms the foundation of a complex system that, among other things, regulates and directs the disposition of unwanted chattels by requiring those seeking to sever their bonds of ownership with chattels to do so in cooperation with others. Observing how rule prohibiting the abandonment of land undermines the usual understanding of the scope of the common law right unilaterally to abandon chattels does not definitively resolve the puzzle of why the common law restricts the right to abandon land. It merely reframes the question. Instead of asking why the common law treats land differently from chattels, the more appropriate question is why the common law expresses such suspicion of abandonment. A fuller explanation of this reframed question points towards the connections between the common law of property and a conception of property in land that views the institution of landownership as a social practice suffused with obligation and duty.

Ben Barros

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