The doctrine of abandonment upholds the proposition that a property is abandoned only when the owner has relinquished, given up or renounced ownership.
While the transfer of de facto control to the custodian for a certain period can be
perceived as temporary abandonment, under no circumstances does it refer to a
unilateral action of ridding one’s self of ownership. Temporary abandonment would
mean that the owner-possessor could reclaim ownership of the property at any given
time and the word “abandonment” could be used to refer to the temporary transfer of
actual possession to the custodian. Although the usage of the term “temporary
abandonment” may sharply contrast with the basic philosophy of “abandonment”
and how it exists within the doctrine of abandonment, the conjunction of the word
temporary to abandonment could support the suggestion that parting with the title is
not unilateral or even considered by the owner-possessor. Moreover, it could also
mean that the abandonment period is short whereby re-claim or re-appropriation by
the owner-possessor is inevitable at any given time. Within this period of temporary
abandonment, the actual owner at all times may, in his mind, assert possession over
the property without any physical custody. In property law, this legal fiction is
“constructive possession” whereby the owner continues to enjoy absolute title, an
absolute right over anyone’s claim, and vindication in court without any reference to
physical possession.
61 In short, constructive possession marks off the rights based on
title from rights based on actual or physical possession.
62 As long as the owner
retains title to the property, he may enjoy the right of constructive possession until
actual and physical re-appropriation of the property takes place.
Compared with actual and constructive possession, the relative bulk of the
concept of adverse possession in legal literature is little and nascent. The main
essence of the doctrine of adverse possession is occupation by an occupier other
than the true owner of a land or a property.
63 It is occupation that is adverse to
possession. This unauthorized possession is in fact acquired without consent of the
true owner. The rules associated with adverse possession is found in both “Common
law and Civil law systems”
64 and is governed by the Law of Limitation, otherwise
known as “prescription or statutory limitation period”. Based on the legal system and
the statutory period, time runs against the true owner to bring an action against the
occupier.
65 A thought comes to mind when emphasizing the statutory period
61 Tay (1963–1964), p. 481.
62 Ibid.
63 Depoorter (2010), pp. 183–187. See also Ellickson (1986), pp. 725–727.
64 Bouckaert and Depoorter (1999), pp. 18–19. The authors confirm that the difference between the
rule of adverse possession found in both systems is the distinction between bad and good faith
possessors. See also Callahan (1961), pp. 41–42.
65 Ibid. Callahan (1961), pp. 43–44. The author adds that “While stating that the doctrine is
fundamentally based on the operation of the Statute in limiting actions to recover the possession
of land to twelve, or fifteen, or twenty years after the cause of action arose, the law appears to be that
the statutes do not mean what they say. When they do operate, they do not merely bar the cause of
action, in the legal way of saying things; they go further and give the possessor “title” to the land.
But this will not occur, nor will the cause of action be barred, unless the activities of the wrongdoer
An Exposé of Canadian “Abandoned Vessels &. . .
353
While the transfer of de facto control to the custodian for a certain period can be
perceived as temporary abandonment, under no circumstances does it refer to a
unilateral action of ridding one’s self of ownership. Temporary abandonment would
mean that the owner-possessor could reclaim ownership of the property at any given
time and the word “abandonment” could be used to refer to the temporary transfer of
actual possession to the custodian. Although the usage of the term “temporary
abandonment” may sharply contrast with the basic philosophy of “abandonment”
and how it exists within the doctrine of abandonment, the conjunction of the word
temporary to abandonment could support the suggestion that parting with the title is
not unilateral or even considered by the owner-possessor. Moreover, it could also
mean that the abandonment period is short whereby re-claim or re-appropriation by
the owner-possessor is inevitable at any given time. Within this period of temporary
abandonment, the actual owner at all times may, in his mind, assert possession over
the property without any physical custody. In property law, this legal fiction is
“constructive possession” whereby the owner continues to enjoy absolute title, an
absolute right over anyone’s claim, and vindication in court without any reference to
physical possession.
61 In short, constructive possession marks off the rights based on
title from rights based on actual or physical possession.
62 As long as the owner
retains title to the property, he may enjoy the right of constructive possession until
actual and physical re-appropriation of the property takes place.
Compared with actual and constructive possession, the relative bulk of the
concept of adverse possession in legal literature is little and nascent. The main
essence of the doctrine of adverse possession is occupation by an occupier other
than the true owner of a land or a property.
63 It is occupation that is adverse to
possession. This unauthorized possession is in fact acquired without consent of the
true owner. The rules associated with adverse possession is found in both “Common
law and Civil law systems”
64 and is governed by the Law of Limitation, otherwise
known as “prescription or statutory limitation period”. Based on the legal system and
the statutory period, time runs against the true owner to bring an action against the
occupier.
65 A thought comes to mind when emphasizing the statutory period
61 Tay (1963–1964), p. 481.
62 Ibid.
63 Depoorter (2010), pp. 183–187. See also Ellickson (1986), pp. 725–727.
64 Bouckaert and Depoorter (1999), pp. 18–19. The authors confirm that the difference between the
rule of adverse possession found in both systems is the distinction between bad and good faith
possessors. See also Callahan (1961), pp. 41–42.
65 Ibid. Callahan (1961), pp. 43–44. The author adds that “While stating that the doctrine is
fundamentally based on the operation of the Statute in limiting actions to recover the possession
of land to twelve, or fifteen, or twenty years after the cause of action arose, the law appears to be that
the statutes do not mean what they say. When they do operate, they do not merely bar the cause of
action, in the legal way of saying things; they go further and give the possessor “title” to the land.
But this will not occur, nor will the cause of action be barred, unless the activities of the wrongdoer
An Exposé of Canadian “Abandoned Vessels &. . .
353