Abandoning Property and The Circular Economy

Published on: Author: Ruth O'Donnell Leave a comment

You are spring-cleaning your house and make the painful decision that the colourful, but worn, table and chairs that you bought for your kids when they were little needs to go. You have lovely memories of your children drawing stick figures at that table on rainy weekend afternoons, but as the youngest child has just gone off to university, it might be time to move on. How do you get rid of the furniture? The property law rules on abandoned property, it seems, might play a crucial role in your decision.

Between 19 March – 5 May this year, I went on a comparative research trip to Louisiana funded by the Royal Society of Edinburgh. I was resident during this trip at Loyola University, New Orleans and worked closely with Professor John Lovett. John kindly invited me along to one of his Civil Law Property classes, the subject of which was abandoned property. Abandoned property is dealt with in the Louisiana Civil Code Art 3418: “One who takes possession of an abandoned thing with the intent to own it acquires ownership by occupancy. A thing is abandoned when its owner relinquishes possession with the intent to give up ownership.” John explained to his students and me that this provision leads to the social practice in New Orleans that in the situation described above, when pre-loved furniture needs a new home, it is deposited on the pavement outside houses just like in the photograph accompanying this blog. The table and chairs here are therefore abandoned and open for occupation by the first possessor. There are vans which regularly travel around neighbourhoods in New Orleans looking for abandoned property to occupy for reuse and resale.

Compare this with the Scottish position. Abandoned moveable property (let’s not talk about abandoning heritable property here, which is separate issue and has been the subject of recent discussion) is bona vacantia and belongs to the Crown. The regularly cited authority is Mackenzie v MacLean (1981 SLT (Sh Ct) 40) – memorable because it was noted there that hundreds of cans of McEwan’s Export and Pale Ale became owned by the Crown when thrown in a skip (and of course swiftly taken by the locals of Stornoway). In 2012, the Scottish Law Commission in its Report on Prescription and Title to Moveable Property commented that, rather absurdly, as “a result of discarding of litter, every day Her Majesty becomes the owner of countless items such as cigarette ends, crisp packets and chewing gum. Furthermore, she acquires larger things such as sagging sofas and defunct cars which have been abandoned by their owners.” (para 5.2) Additionally, if you place your old furniture out on the street, you may also be committing an offence of flytipping – that is depositing waste on land without a licence under s33 of the Environmental Protection Act 1990.

After returning from the Young Property Lawyers’ Forum, held 28 – 29 May at the University of Maastricht, I began to think again about this particular difference between these two Mixed Legal Systems. At the YPLF, there was a roundtable session where together the participants brainstormed how property law could contribute to sustainability and during the conference Benjamin Verheye from KU Leuven, gave a presentation on the Circular Economy and Property Law. Louisiana’s rules certainly facilitate the second hand market of abandoned moveables and the cultural habits that have developed from the rules mean that the people of New Orleans are far less likely to just throw out things which could have a continuing use. This means greater value is easily obtained from existing goods through reuse, repair and recycling – the mantras of the circular economy. Indeed, placing furniture on your doorstop for it to be picked up by who ever desires it is even easier than offering it on Gumtree, Craigslist or Ebay.

Should the Scottish rules be changed? The Scottish Law Commission have suggested that the law in Scotland should be reformed so that abandoned property, like in many other jurisdictions, becomes ownerless and open for occupation. In light of this brief comparison between Louisiana and Scotland, I would argue this reform proposal could be further justified from the perspective of sustainability and supporting the circular economy.

~ Dr Jill Robbie (Lecturer in Private Law, School of Law)

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