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Inability to Abandon Property in the Civil Law

Update: see also Homesteading, Abandonment, and Unowned Land in the Civil Law (Mises Blog, 2009)

In Copyright is very sticky!, I noted how it’s hard to get rid of copyright. There is a somewhat similar aspect to modern property law. As I describe in A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability (see also A Critique of Mutualist Occupancy), under libertarian property principles, a person can acquire ownership of an unowned resource—whether movable or immovable (land)—by homesteading it—which is basically initial possession coupled with intent to own. As I noted in A Critique of Mutualist Occupancy,

Ownership is acquired by a merger of possession and intent to own. Likewise, when the intent to own ceases, ownership does too—this is the case with both abandonment of ownership and transfer of title to another person, which is basically an abandonment of property “in favor” of a particular new owner. See Kinsella, “A Libertarian Theory of Contract,” pp. 26–29; also Louisiana Civil Code, Art. 3418 (“A thing is abandoned when its owner relinquishes possession with the intent to give up ownership”) and Art. 3424 (“To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing”; emphasis added).

Interestingly, as I was looking for examples in the Louisiana Civil Code for various ways legal systems treat various aspects of property rights, I was unable to find anything in the code about either original appropriation of unowned immovable property (land), or abandonment of owned immovable property.

For movable things (personalty), the code’s provisions seem to embody libertarian principles. See: Art. 3412 (“Occupancy is the taking of possession of a corporeal movable that does not belong to anyone.  The occupant acquires ownership the moment he takes possession”); Art. 3418 (“A thing is abandoned when its owner relinquishes possession with the intent to give up ownership”) and Art. 3424 (“To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing”; emphasis added).

But unlike the case for corporeal movables, the code does not even seem to contemplate that it is possible for there to be unowned land. I was a bit shocked by this, since even if the code were to treat this an an unlibertarian way, one might expect an explicit statement such as any property for which there can be identified no owner is owned by the state; title in all property ultimately traces back to the sovereign (the state); abandoned property reverts to the estate, etc.

In the law, it is common to prove title by tracing it back to the sovereign (the state, e.g. Texas or Louisiana, or the federal government). One can in effect abandon property by actually abandoning it and letting someone else acquire title by adversely possessing it; they would acquire it after a long period of time by acquisitive prescription (10 or 30 years)–see Arts. 3446 (“Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time”); 3473 (“Ownership and other real rights in immovables may be acquired by the prescription of ten years”); 3486 (“Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith”).

Perhaps as a default rule this is reasonable–the nature of the long-term ownership of real property may require that we not presume abandonment unless a long time passes, in the absence of clear evidence; but what if the owner explicitly abandons the property? Why does it need to take 10 years for this to have effect?

Now, granted, if you are going to explicitly abandon it you might as well just convey it to someone; or sign a quitclaim deed [see note 34 of my A Libertarian Theory of Contract for more on quitclaiming]; and in any event a squatter who moves in the next day acquires a type of possession that eventually matures into ownership.)

Still, it is passing strange that the Code does not even seem to contemplate that land could be abandoned or unowned, or indeed that it ever was unowned. Maybe it is too distasteful to explicitly admit that the state has just seized the right to determine these matters.

[Cross-posted at Mises blog]

Update: see also Homesteading, Abandonment, and Unowned Land in the Civil Law (archived comments)

{ 4 comments… add one }
  • Gregory W. Rome August 10, 2009, 1:48 pm

    I broke out my compiled edition of the Code to check this question out.

    From 1804 until the 1983 revision, La. Civ. Code art. 3412 read, “Occupancy is a mode of acquiring property by which a thing while belongs to nobody* becomes the property of the person who took possession of it, with the intention of acquiring a right of ownership upon it.” The * represents an omission in the English translation from the French, which is “comes under the control and.”

    This code article does not restrict ownership via occupancy to movables. The French source text doesn’t refer to movables either.

    On the other hand the 1983 revision comments state that the new 3412 “reproduces the substance of Articles 3412, 3413, and 3414. It does not change the law.” Current 3412 only applies to corporeal movables.

    I suspect the comment may be wrong, because La. Civ. Code art. 3421 (1870) reads, “He who finds a * thing which is abandoned; that is, which its owner has let [left] with the intention not to keep it any longer, becomes master of it in the same manner as if it had never belonged to any body.” The * is the omission in the English translation of “movable.” The inclusion of the phrase “movable thing” in 3421 (1870) but not in 3412 (1870) leads me to believe that 3412 was intended to apply to immovables as well. Article 3421 (1870) has been recodified as current article 3418, which does include the word “movable.” The comment asserts that it doesn’t change the law.

    The final wrinkle my cursory research revealed is the 1800 Projet du Gouvernement doctrine/comment that informs article 3412, which reads, “The civil law does not recognize the right of mere occupancy. Things which have never been abandoned by their owners, [sic] belong to the nation. No one can acquire them save by a possession sufficient to operate prescription.” Apparently doctrinal advancement between 1800 and 1804 changed their tune, because the civil law began recognizing at least the occupancy of movables and maybe of immovables under art. 3412.

    So, after looking at the compiled edition, I don’t know what’s going on with occupancy with respect to immovables. There are some references to French doctrinal sources that might be helpful, but I won’t be anywhere near a law library any time soon.

    I think, as a practical matter, ownership of immovables through occupancy is probably unworkable. How do you show a person’s intent to abandon his land? With movables, it’s relatively easy. If a person throws out the trash, you know he’s done with it; it’s abandoned. With land, there’s no corresponding act. I guess he could execute some sort of act declaring his intention to abandon, but if he were going to go through all that trouble, why not just make it a quitclaim deed (as mentioned in your article)?

    I think you came very close to the answer with your comments about the 10 year prescription just being a good default. Also, don’t forget that once the possessor possesses for a year, he has the right to possess against anyone but the owner, so – if the owner really did feel like abandoning and continues to feel that way – the possessor’s right to possess is good against the world, practically, in one year, not ten. It’s not instantaneous like libertarian doctrine would like, but from the point of view of the code – in which acquisitive prescription normally takes 10 or 30 years – it’s pretty close.

    Additionally, the libertarian ideal could very well cause nightmares in court. Imagine untangling who owns a piece of property under the following circumstances. A definitely owns a piece of land. He leaves, and B subsequently comes through and intends to own it for 3 days. B then moves to another place for work but intends to come back. Finally, C – who knows nothing about B’s ownership – starts working the land and intends to own it. C holds it for 9 years, then B comes in and says, “Well, I worked the land for three days nine years ago but I had to leave. Now I’m back and I want my land.” What happens if A shows up and says he didn’t mean to abandon it? Did he?

    Possessory and Petitory actions can be hard enough already. “One year to possess, ten years to own” provide reasonable hard & fast rules that make the outcome at least a little predictable.

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