The right to abandon.

• Author: Strahilevitz, Lior Jacob

The common law prohibits the abandonment of real property. Perhaps it is surprising, therefore, that the following are true: (1) the common law generally permits the abandonment of chattel property, (2) the common law promotes the transfer of real property via adverse possession, and (3) the civil law is widely believed to permit the abandonment of real property. Because the literature on abandonment is disappointingly sparse, these three peculiarities have escaped sustained scholarly analysis and criticism. This Article aims to provide a comprehensive analysis of the law of abandonment. After engaging in such an analysis, this Article finds that the common law's flat prohibition on the abandonment of corporeal interests in real property is misguided. Legal rules prohibiting abandonment ought to be replaced with a more permissive regime in which both the value of the underlying resource and the steps that the abandoning owner takes to ensure that would-be claimants are alerted to the resource's availability are what matters. Furthermore, the law of abandonment ought to be harmonized for real property and chattels. Finally, this Article criticizes the law's preference for adverse possession over abandonment as a means of transferring title in cases in which these mechanisms might function as substitutes.

In the course of analyzing the law of abandonment and offering a qualified defense of the practice, this Article provides the first workable definition of resource abandonment, suggests that the abandonment of positive-value real and intellectual property is surprisingly widespread by providing multiple examples, and analyzes the costs and benefits associated with abandonment. This Article explores at some length the factors that will determine whether an owner opts for abandonment or other means for extinguishing his rights to a resource, as well as the considerations that should drive the law's receptivity to these efforts. The latter considerations include the decision, transaction, decay, confusion, sustainability, and lawless-race costs associated with abandonment. In addition, readers will be exposed to pertinent tidbits concerning the social norms of geo-caching, the anthropology of "making it rain," the unfortunate decline of municipal bulky-trash pickup, Mississippi's misguided livestock laws, and the dubious parenting choices of Jean-Jacques Rousseau.

INTRODUCTION I. UNDERSTANDING ABANDONMENT A. Taxonomy of Abandoned Properties B. Costs of Abandonment C. Abandonment's Comparative Appeal II. THE LAW OF ABANDONMENT A. Permissive Regimes B. Escheat C. Prohibition D. Licensing E. Promoting Abandonment? III. A PROPOSAL FOR RATIONALIZING THE LAW OF ABANDONMENT A. Negative-Market-Value Property B. Positive-Market-Value Property C. Is Land Different? CONCLUSION INTRODUCTION

On an ordinary Wednesday in August of 2008, there were sixty-one separate listings in the "Free Stuff" section of Chicago's Craigslist directory. (1) The belongings made freely available ranged from highly desirable items (an entertainment center in great condition, a working "Gilbranson [sic] organ," televisions, and microwave ovens) to those that might be useful to a niche population (a Hewlett-Packard inkjet cartridge, VHS tapes of the motion pictures Free Willy and Free Willy 2, and wooden doors from a colonial house built in 1938) to the nearly worthless (a broken refrigerator, one cubic yard of dirt from a landscaping project, and "Tons of River Rocks"). All were offered by their owners on a first-come, first-served basis. In most cases, the items were kept inside the owner's home, and a claimant would need to make arrangements with the owner to haul off the property. But the owners were not picky--the first claimant with the ability to do so could take the advertised property home. In a few cases, such as that of the broken refrigerator, the item had been left by the owner in an alley or another easily accessible place, and the Craigslist advertisement described its location. (2)

Craigslist is hardly alone in pairing would-be abandoners with potential claimants. Another national organization, the Freecycle Network, offers a similar service with high levels of participation, and BookCrossing is a global service that facilitates the abandonment and finding of books. In recent years, communities of "freegans" have sprouted up in urban areas around the world, eating, cleaning, and wearing resources that other people have discarded. (3) As a testament to the prevalence of abandonment and the value of the resources abandoned, it appears that some of these freegans are able to live essentially pleasant, middle-class lives. (4) As the American economy has slid into a significant recession, states like Florida and South Carolina are dealing with hundreds of abandoned boats that are clogging local waterways, left by owners evidently unable to find buyers and unwilling to pay slip fees. (5) Moreover, it is not only personal property that is widely abandoned. In rural, sparsely populated areas of Kansas, Nebraska, and North Dakota, local governments have made free land available to anyone willing to build a house on it and move in. (6) In urban centers, the problem of abandoned dwellings is significant, accounting for 23,000 dwelling units in New York City in 1996 and 1.3% of all urban residential housing units in fifty-eight cities in the northeastern United States in 1975. (7)

Given the ubiquity of abandoned property and its presumptive economic importance, one would expect there to be a large legal literature exploring the contours of abandonment law. Such a supposition turns out to be unduly optimistic. There is very little legal writing on the abandonment of property. When legal scholars tackle the issue, they tend to focus on specific issues, like abandoned shipwreck cases, abandoned oil and gas interests, or abandoned rail lines. (8) The leading property casebooks either ignore abandonment entirely or give it brief attention. (9) For whatever reason, legal scholars have nearly abandoned the topic and remained oblivious to its charms. (10) This Article fills that gap in the property literature by examining the law of abandonment in a comprehensive way. Perhaps unsurprisingly, in light of the dearth of attention that abandonment law has received, this Article finds the law of abandonment wanting and suggests doctrinal improvements.

Part I examines the motivations behind decisions to abandon real and personal property, developing a taxonomy of abandonment along the way and demonstrating that positive-market-value property is abandoned with some frequency. Part I also highlights some of the social costs of abandonment, which form a basis for laws restricting the practice. The Part concludes by comparing abandonment to the primary competing methods of disposing of property--sales, gifts, and destruction. Much can be learned from this comparison. For example, one danger of rules that unduly restrict the abandonment of positive-value resources is that owners will be left with little choice but to destroy those resources instead. Part II describes and analyzes the law of abandoned property, identifying five basic approaches that courts and legislatures have taken and assessing the rationales and merits of these approaches. Part III proposes a framework for rationalizing the law of abandonment. In the place of a common law regime that prohibits the abandonment of real property and regulates abandonment in the context of chattels, this Article suggests a unified regime that is pegged to the underlying market value of the resource and the social costs of abandonment. More precisely, the law likely ought to permit the abandonment of positive-market-value resources if owners take steps to advertise the availability of such property. Such advertisement will minimize most of the social costs associated with abandonment. With respect to negative-market-value resources like contaminated land or rotting garbage, a prohibition on abandonment usually makes sense in both the real property and chattel property contexts, at least in nations where the baseline level of law-abiding behavior is high. In short, this Article presents a qualified defense of the right to abandon property.

The Article concludes by contrasting American law's receptiveness to adverse possession and its hostility to the abandonment of real property. Such a regime makes sense in a world where differentiating between positive- and negative-value real estate lies beyond the institutional competencies of courts. However, as long as judges can adequately assess the value of real estate based on comparable sales, the case for permitting adverse possession of real estate while prohibiting the abandonment of real estate collapses. If anything, the concerns that explain the common law's resistance to the abandonment of real property would be better alleviated by prohibiting the adverse possession of real estate by bad-faith adverse possessors than by maintaining the prohibition on abandoning real estate. Put simply, whereas new information technologies mitigate the problems associated with the decay or waste of an abandoned resource during the period in which it remains up for grabs, the doctrine of adverse possession ensures that a knowing trespasser will not put property to its highest-value use during the entirety of the statute of limitations period.

1. UNDERSTANDING ABANDONMENT

   It will be helpful to begin with a definition. In the case of abandonment, a simple and elegant definition is readily available. Abandonment means any unilateral transfer of ownership. The word "unilateral" is doing much of the heavy lifting here. (11) Other means of transferring property--sales, gifts, bequests, releases, forfeitures, foreclosures, and adverse possession--require that a third party assume ownership of the property or agree to do so. (12) An owner who wishes to dispose of property...