KEEPING IT PRIVATE: THE IMPOSSIBILITY OF ABANDONING OWNERSHIP AND THE HORROR VACUI OF THE COMMON LAW OF PROPERTY.

• Author: von Schutz, Konstanze

Introduction I. Abandoning Ownership in the Common Law A. General Principle: No Abandonment B. Exceptions C. De Facto Versus de Jure Restrictions on Abandonment D. Abandonment as Transfer? II. Why Is There No Abandonment in the Common Law? A. The Horror Vacui and Impossible Abandonment B. Feudal Heritage C. Preventing Liability Evasion D. From Liability to Proprietary Responsibility III. Abandonment in the Civil Law and "Public Ownership of Last Resort" IV. The Common Law: Monist Ownership and the Need to "Keep It Private" A. The Common Law's Monist Conception of Ownership B. The Horror Vacui, Abandonment, and the Need to "Keep It Private" Conclusion Introduction

Owners can occasionally make "treasure hunters" happy when they leave behind things for which they no longer have any use, (1) but sidewalks lined with household clutter raise eyebrows. When owners walk away from what is theirs, it may not just be annoying, but can also generate substantial harm and elicit public outrage. Instances of the latter kind include, for example, industrial sites that become orphaned following the bankruptcy of the corporations that operated them, or uninhabited, derelict houses in downtown areas. Orphaned industrial sites can release toxic substances into groundwater and soil which requires complicated (and costly) cleanup. (2) Derelict houses in downtown areas can be dangerous for neighbours and passersby, they withdraw urgently needed space, and they can negatively impact the perception of their immediate surroundings. (3) Allowing owners to vanish into thin air would seemingly permit them to eschew liability for these kinds of negative impacts. It clearly does not sit comfortably to let them just walk away and, in so doing, shed all responsibility for the consequences of their previous dealings with a thing. This is especially so because, as owners, they were exclusively entitled to these dealings. It is highly doubtful if owners should be allowed to exploit all the benefits of a resource and, at the same time, be able to leave the consequences to be dealt with by others.

Conversely, preventing owners from ever parting ways with their things seems unduly harsh. Owners are entitled to exclusive control over what is theirs. But to keep them tied to their things forever would, figuratively speaking, put them under their things' exclusive control. While many would agree that it is problematic for owners to simply throw away their empty cans and plastic wrappers on the street, there is also a sense that there should nevertheless be a way for them to permanently get rid of their household garbage.

What is more, it can be just as problematic when owners are able to use up and destroy their things without being able to abandon them when they are no longer wanted. (4) Property rights in a thing end when it is physically destroyed. (5) So, tying owners to their (unwanted) things could incentivize them to destroy these things instead of encouraging them to leave intact but unwanted things behind for others to take and use. (6) It may suffice to think about items placed on the sidewalk around garbage collection day or the "Little Free Libraries" mushrooming successfully across North America to illustrate that it can at times be preferable to enable owners to part ways with their things. (7)

In the law of property, owners' capacity to walk away from their things is governed by the rules on abandonment. Abandonment is "the voluntary relinquishment of all rights, title, or [proprietary] claim ... to property that rightfully belongs to the owner of [a thing]." (8) In the legal context, this refers only to the situation in which a legal position, such as ownership, is terminated. This more technical understanding of abandonment must be distinguished from the one that identifies all that is de facto left behind as "abandoned." Indeed, and as this article will show, any thing left behind, be it a parcel of land or a piece of chattel, is not necessarily unowned. (9)

Legal systems attempting to deal with abandonment are uneasy both with owners eschewing responsibility and with binding owners too tightly to their things. Over the course of the last three to four decades, the question of how the common law balances these two discomforts has received a sustained level of scholarly attention. (10) While prior accounts have provided many insightful perspectives on the common law's rules on abandonment, they have tended to only focus on selected case law dealing with it. This issue has also sometimes been compounded by an adherence to theoretical pre-commitments that are at best incompletely realized in the doctrine on abandonment. No account has so far succeeded in explaining the entirety of these legal rules.

My aim in this article is to offer a conclusive and comprehensive theoretical account of the entirety of the common law's rules on the abandonment of ownership. (11) I suggest that examining the common law's rules on abandonment requires us to reflect on fundamental questions pertaining to the role of ownership in the legal system, and on what we allow and expect owners to do with the resources assigned to them. I show that the way in which the common law conceives of ownership and distributes the roles between private owners and the state commits the common law to "keep it private" (i.e., to ensure that ownable things remain in private hands for as long as possible). I will show that both the general rules on abandonment as well as the exceptions to them are intimately tied to this underlying view of ownership and the strict delimitation of private owners from public entities that it implements. (12)

The article proceeds as follows: In Part I, I begin with a description of the legal rules on the abandonment of ownership in the common law and show that the restriction on abandonment is almost all-encompassing, notwithstanding two exceptions worth attending to. I refute interpretations of the law that attempt to show that there are either different types of restrictions on abandonment, or none at all. In Part II, I turn to the motivation underlying the restriction on abandonment and introduce the notion of horror vacui. I canvass several unsuccessful explanations for the common law's horror and highlight that the investigation should concentrate on how the common law allocates responsibility for things to private owners. Part III then examines the "public ownership of last resort" model adopted in French and Quebec property law to demonstrate the importance of linking a legal system's treatment of abandonment with its conception of ownership. In Part IV, I proceed to lay out how the common law's conception of ownership shapes its horror as a fear of the absence of private ownership and consequently its approach to abandonment. A final section concludes and points out implications of a view of ownership that strives to "keep it private."

1. Abandoning Ownership in the Common Law

   This section provides an overview of the common law's rules on abandonment. I will demonstrate that it is generally impossible to abandon ownership of both land and chattels. In weighing the concerns of holding owners responsible for their things on the one hand and acknowledging their desire to get rid of unwanted things on the other, the balance tilts heavily toward responsibility. I introduce the exceptions for the abandonment of wild animals and on the high seas, and highlight that these exceptions do not unsettle the general conclusion that abandonment is impossible. I also discuss two unsuccessful attempts at reaching a different conclusion. These accounts either argue that the restrictions on the abandonment of land and chattels are different in kind, or that abandonment should generally be viewed as a conditional transfer. I show that neither suggestion fully captures the legal rules on the abandonment of ownership. Both accounts are ultimately unconvincing.

   1. General Principle: No Abandonment

      Canadian common law courts have understood abandonment as "'a giving up, a total desertion, and absolute relinquishment' of private goods by the former owner" and as "aris[ing] when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property." (13) Put differently, owners abandon when they decide to put an end to the proprietary ties that have existed between them and a thing they own(ed), and then do something that communicates this intention to the outside world. Abandonment extinguishes someone's ownership position in direct response to the decision to part ways with a thing that person owns. (14)

      This formulation suggests that abandonment is possible (i.e., that the question of whether abandonment took place is open-ended and can lead to different answers depending on the interpretation of an owner's behaviour in a specific case). However, a closer analysis of the case law reveals that it is not at all easy to part ways with a thing that one owns. As Yaell Emerich points out, it is "very difficult in ... common law to actually abandon one's property rights." (15) Ben McFarlane observes that "the concept of abandonment is very problematic" and that, "[i]n general, a party with a property right does not have the power simply to give up that right." (16) Already in the sixteenth century, English jurist St. Germain let his student of the common law explain that it is permitted to waive possession, but not ownership. (17)

      The impossibility of abandoning land is indeed firmly established across common law jurisdictions. (18) When I wish to divest myself of my (hypothetical) acreage as I get too consumed with perfecting my chess skills, I simply cannot do so in a way that the law recognizes as abandonment. Since land might be rendered worthless or unusable but cannot be destroyed, there are--adverse possession aside--only two ways in which my ownership can end. I either succeed in transferring the parcel to...