Publication Date

2010

Publication Title

University of Pennsylvania Law Review

Abstract

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 qualifed 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 geocaching, the anthropology of "making it rain," the unfortunate decline of municipal bulky-trash pickup, Mississippi's misguided livestock laws, and the dubious parenting choices ofJean-Jacques Rousseau.

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