Similar to res nullius, the doctrine of bona vacantia
85 applies to ownerless
property. Originating in English law, bona vacantia refers to vacant goods,
unclaimed property and is a legal concept that is closely tied to property that has
no owner. The only difference between res nullius and bona vacantia is that the
latter includes property, which has no owner other than the Crown. In other words,
bona vacantia properties would include, e.g., property of companies removed from
the companies register, failed trusts, property of people who have passed away
without a will, property of unincorporated societies, assets of dissolved companies
that have failed to be distributed, assets of dissolved unincorporated associations that
have failed to be distributed, assets of the estates of deceased persons that have failed
to be distributed due to intestacy and a lack of known persons entitled to inherit. An
important principle of bona vacantia is that it does not apply to ships or abandoned
property where the owner is unknown or cannot be located. Although the main
principle of the doctrine revolves around ownerless property, the fact that it passes to
the Crown or common law sets it aside for the Crown, keeps bona vacantia outside
of scope of the doctrine of abandonment.
2.4 Dereliction
As discussed earlier, ownership is considered as a natural link between the owner
and the property. From time immemorial, law has given clear recognition to this
natural link. While this acknowledged link establishes an owner’s “quiritarian
ownership”
86 over the property, the law also obliges an owner to relinquish all rights
in a manner prescribed by the law of the respective jurisdiction. In other words, there
needs to be a clear and explicit indication by the owner of the intention to discontinue ownership. Even if the intention is unclear and the property still remains
unattended, the property in question cannot be absolutely deemed as abandoned
and therefore, the given situation does not render the property as res nullius or res
derelicta.
87 Mere vacancy does not necessarily mean that the true owner of title has
abandoned it. This begs the question—how can an owner of a property convey an
explicit intention? In property law, the finder of an abandoned property needs to
confirm that the property has actually been abandoned. Before establishing a claim
on a derelict property, the finder is under an obligation to conduct a proper investigation, e.g., property tax records, land registry records, tax assessor’s records. In
85 Used interchangeably with escheat or unclaimed property. Escheat in medieval England was
considered as reversion of property to the feudal lord. Moreover, unclaimed property generally
consists of, e.g., uncashed payroll checks, uncashed payments to suppliers, uncashed dividend
checks, customer overpayments, bank accounts, wages, refunds, utility deposits, insurance policy
proceeds, stocks, bonds, contents of safe deposit boxes, that have been abandoned.
86 Ownership held by a title recognized by the municipal law.
87 Adeleye and Acquah-Dadzie (1999), p. 345. Res derelicta is defined as a property which is
deserted or abandoned and can thus be acquired by the first occupant or taker.
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T. M. Johansson
85 applies to ownerless
property. Originating in English law, bona vacantia refers to vacant goods,
unclaimed property and is a legal concept that is closely tied to property that has
no owner. The only difference between res nullius and bona vacantia is that the
latter includes property, which has no owner other than the Crown. In other words,
bona vacantia properties would include, e.g., property of companies removed from
the companies register, failed trusts, property of people who have passed away
without a will, property of unincorporated societies, assets of dissolved companies
that have failed to be distributed, assets of dissolved unincorporated associations that
have failed to be distributed, assets of the estates of deceased persons that have failed
to be distributed due to intestacy and a lack of known persons entitled to inherit. An
important principle of bona vacantia is that it does not apply to ships or abandoned
property where the owner is unknown or cannot be located. Although the main
principle of the doctrine revolves around ownerless property, the fact that it passes to
the Crown or common law sets it aside for the Crown, keeps bona vacantia outside
of scope of the doctrine of abandonment.
2.4 Dereliction
As discussed earlier, ownership is considered as a natural link between the owner
and the property. From time immemorial, law has given clear recognition to this
natural link. While this acknowledged link establishes an owner’s “quiritarian
ownership”
86 over the property, the law also obliges an owner to relinquish all rights
in a manner prescribed by the law of the respective jurisdiction. In other words, there
needs to be a clear and explicit indication by the owner of the intention to discontinue ownership. Even if the intention is unclear and the property still remains
unattended, the property in question cannot be absolutely deemed as abandoned
and therefore, the given situation does not render the property as res nullius or res
derelicta.
87 Mere vacancy does not necessarily mean that the true owner of title has
abandoned it. This begs the question—how can an owner of a property convey an
explicit intention? In property law, the finder of an abandoned property needs to
confirm that the property has actually been abandoned. Before establishing a claim
on a derelict property, the finder is under an obligation to conduct a proper investigation, e.g., property tax records, land registry records, tax assessor’s records. In
85 Used interchangeably with escheat or unclaimed property. Escheat in medieval England was
considered as reversion of property to the feudal lord. Moreover, unclaimed property generally
consists of, e.g., uncashed payroll checks, uncashed payments to suppliers, uncashed dividend
checks, customer overpayments, bank accounts, wages, refunds, utility deposits, insurance policy
proceeds, stocks, bonds, contents of safe deposit boxes, that have been abandoned.
86 Ownership held by a title recognized by the municipal law.
87 Adeleye and Acquah-Dadzie (1999), p. 345. Res derelicta is defined as a property which is
deserted or abandoned and can thus be acquired by the first occupant or taker.
358
T. M. Johansson