The illusory right to abandon.

• Author: Penalver, Eduardo Moises

The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law's concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine 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 forgo any future claim to it. A complication immediately arises, however, due to the common law's traditional prohibition of the abandonment of land. But the problem goes even deeper. Viewed through the lens of land, the (prospective) right to abandon virtually any form of tangible property, even chattels, is an illusion. This is because the legal prohibition of abandoning land dramatically qualifies the unilateral right to abandon chattels to the point of insignificance. The common law's treatment of land is not an anomalous restriction within a legal regime that otherwise empowers owners to freely abandon their property. Instead, the inability to abandon land forms the foundation of a system that, among other things, helps regulate and direct the disposition of unwanted chattels by requiring those seeking to sever their bonds of ownership to do so in cooperation with others. Instead of asking why the common law treats land differently from chattels, the more appropriate question to ask is why the common law exhibits such suspicion of abandonment as a whole. Approaching the discussion of abandonment from this perspective points towards connections between the common law of property and conceptions of ownership that view the latter as a social practice suffused with obligation and duty.

TABLE OF CONTENTS INTRODUCTION I. THE LAW OF ABANDONMENT A. Abandonment in General B. Abandonment Distinguished 1. Conveyances 2. Forfeiture C. Abandonment of Land II. WHY Is LAND DIFFERENT? A. How Different Is Land? B. Regulating Abandonment Through Land C. The Continuing Value of the Common Law's Suspicion of Abandonment CONCLUSION INTRODUCTION

In this Article, I will transform the way you think about abandonment law. This is not just your typical law review introduction bravado. I can make this claim with such confidence because, if you are like most people (even most property scholars), you do not think about abandonment law much at all. That is not your fault. This humble doctrine seems so easy that it merits only the most passing mention in property casebooks and is ignored altogether by many. (1) It has received similar treatment from contemporary property scholars, generating only two articles dedicated to the topic in the past seventy years. (2) I hope to demonstrate that the doctrine of abandonment is both more complex and significantly more interesting than its relative scholarly neglect suggests.

In a first-year property curriculum that is full of difficult concepts, arcane rules, and seemingly anachronistic distinctions, the law of abandonment stands out for its clarity. Simply put, the law is said to empower owners of chattels to abandon them by unambiguously manifesting the intent to do so (most typically by physically abandoning possession of the object in a way that communicates the intent to forgo any future claim to it). (3) At first glance, the unilateral and unqualified nature of the right to abandon appears to make it a robust example of the common law's concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. (4) For these theorists, private ownership is, at its core, the space of negative liberty that remains when others are excluded from an owned object. (5) Elaborations of these exclusion theories (or "boundary" theories, as Larissa Katz has helpfully dubbed them), tend simultaneously to stake out both normative and descriptive positions with respect to property doctrine, arguing that the exclusion conception of property is normatively superior and that the common law of property by and large already incorporates and reflects this understanding of ownership. (6)

Exclusion theories of property lend themselves to the conventional account of abandonment as a robust power enjoyed by owners to unilaterally sever their ties of ownership to things. As James Penner puts it:

It is surely part of a right to determine how a thing is to be used that one may make no use of it at all, for evermore. One ought not to be saddled with a relationship to a thing that one does not want, and an unbreakable relation to a thing would condemn the owner to having to deal with it. (7) And, indeed, at first glance, the common law doctrine of abandonment as it has traditionally been understood appears to provide good support for the exclusion theorists' descriptive claim that their conception of property is already reflected in the common law.

In this Article, I will characterize the law of abandonment as a counterpoint to the descriptive component of the exclusion theorists' project. This goal will seem deeply counterintuitive to property scholars accustomed to the traditional description of the right to abandon. But, when we explore abandonment through the lens of possessory interests in land (which everyone agrees cannot legally be abandoned), we begin to recognize the right to abandon as both more qualified and less unilateral than initially appears to be the case. In the end, rather than exemplifying owners' autonomy, the law of abandonment serves as a useful example of the constant interplay between autonomy and obligation. More broadly, through its operation on land, the law of abandonment facilitates a unique role for landownership as a mechanism for spreading and enforcing norms of obligation. (8)

In Part I, I describe the broad outlines of the law of abandonment as it has traditionally been understood, focusing on the distinction between chattels, which owners are ostensibly free unilaterally to abandon at will, and land, for which the doctrine of abandonment is more complicated and qualified. In Part II, I revisit this apparently divergent treatment of land and personal property. I argue that, in fact, the two are not treated as differently as the mere statement of the applicable legal rules in Part I suggests. Viewing the law concerning the right to abandon as a unitary legal structure--rather than in piecemeal fashion--reveals that the owner's right to abandon (even chattels) is largely illusory. This is because the legal prohibition on abandoning land, when coupled with other common-law doctrines, qualifies the right to abandon chattels almost to the point of insignificance.

My description of the law of abandonment flies in the face of the conventional understanding of the doctrine, particularly as it has been set forth in scores of reported cases. (9) But these cases, which seem at first glance to spell out a simple and robust power of owners to abandon chattels, are not really about the prospective rights of owners at all. Instead, they are invariably concerned with settling (after the fact) disputes about items of property that too many people (including, frequently, the original owners themselves) want to own. In other words, the cases do not actually seek to empower owners to abandon their property but rather to protect subsequent possessors of "abandoned" property from prior possessors who want to retain their ownership rights. (10)

The (re)interpretation of the law of abandonment that I propose in this essay understands the common law's treatment of land as the foundation, rather than the exception, to its approach to abandonment in general. As I will argue, the essence of the concept of abandonment--the feature that distinguishes it conceptually from a conveyance (the alternative for owners seeking to rid themselves of property)--is its unilateral nature. (11) But if this is the case, then virtually the only property interests that owners can truly abandon are certain incorporeal interests in land. (12) In practice, what typically passes for "abandonment" of other forms of property are actually bilateral acts--that is, seamless conveyances of property from one person to another that require the consent of both.

Observing how the rule for land undermines the traditional characterization of the common law right to abandon chattels does not resolve the frequently asked question of why the common law treats the abandonment of land differently from chattels. It merely refines the issue. Instead of asking why the common law treats land differently from chattels, the more appropriate question to ask is why the common law expresses such suspicion of abandonment. A consideration of this reframed question points towards the connections between the common law and a conception of property that views the institution of ownership as a social practice suffused with obligation and duty. This view is at odds with conceptions of ownership that treat it as, at its core, the negative space created by the exclusion of others from owned things, with obligations treated as deviations from that core that stand in need of special justification.

A few caveats. I do not understand or intend this discussion of abandonment to refute exclusion theories. Nor do I mean to imply that rights of exclusion are not a particularly important part of what it means to own private property, especially land. Instead, this Article's aims are fairly modest. My goal is to identify one of the boundaries of the descriptive fit (or lack of fit) between the common law of property and the conception of property as the negative space resulting from exclusion. Getting this right matters, because the less exclusion theories' claims are already reflected in existing property doctrine, the heavier the normative...