property is the subject matter of mortgage, then the discussion will fall into another
area of law. In those cases the property is pledged to the mortgagee, and even though
the mortgagor continues to have constructive possession over the mortgaged property—the exclusive rights or the bundle of rights can be deemed as somewhat
limited. While relational governance is transaction-specific and to a great extent
based on trust, in the context of property rights, trust is also an important factor that
governs the relationship between the owner, the custodian and the property. If the
custodian has sold the property to a third person without the consent of the true
owner, then the sale is void ab initio. If the third person has stolen the property or
acquired ownership through illegal means, then the third person is said to have
acquired illegitimate possession. From an analytical perspective, this governance
aspect tends to render property with a diametric personality.
At first instance, property has a direct relationship with the owner whereby the
personality is regulated by actual and constructive possession. The latter personality
is evident when there is a shift in actual possession from the true owner to another
person entrusted with the custody of the property. In other words, the personality
shifts with temporary abandonment, but ownership still remains intact via constructive possession. In both these personalities, the property is still an entity conceptualized as a bundle of rights, which can be exclusively exercised by the owner.
130
Academics argue that this bundle of rights gives the owner a legitimate right against
the rest of the world.
131 But this legitimate right of the owner becomes complex in
cases where the property is in adverse possession, and more specifically, when the
property is abandoned in a manner so as to blur the lines between temporary
abandonment and permanent abandonment. From those cases where temporary
abandonment and permanent abandonment cannot be distinguished, it can be
asserted that the owner tends to gain an additional mental right from exercising the
“bundle of rights” that comes with ownership. This additional right can be titled
“right to abandonment” and characterized as having a subtle distinction with the
“right to capital” i.e., the power to alienate the thing that includes the power to
consume, waste, modify, or destroy it.
132 If the right to abandonment is exercised in
a manner so as to render the property as permanently relinquished, given up or
renounced, then the property is a res nullius. Until the time that res nullius or res
derelict is owned by a finder by occupatio, the bundle of rights remain dormant. The
diametric personality of the property is revived the minute the finder establishes a
firm claim over the property by applying for a title of ownership through registration.
Then the finder is positioned as the true owner and the exclusive right over the
property applies against the rest of the world.
Although this “relational governance” facet mainly functions in terms of corporeal real property and incorporeal real property, the same doctrines and the same
principles can be used to examine vessel abandonment and its position in maritime
130 Ziff (2006), p. 2.
131 Merrill (1998).
132 Honoré (1993).
370
T. M. Johansson
area of law. In those cases the property is pledged to the mortgagee, and even though
the mortgagor continues to have constructive possession over the mortgaged property—the exclusive rights or the bundle of rights can be deemed as somewhat
limited. While relational governance is transaction-specific and to a great extent
based on trust, in the context of property rights, trust is also an important factor that
governs the relationship between the owner, the custodian and the property. If the
custodian has sold the property to a third person without the consent of the true
owner, then the sale is void ab initio. If the third person has stolen the property or
acquired ownership through illegal means, then the third person is said to have
acquired illegitimate possession. From an analytical perspective, this governance
aspect tends to render property with a diametric personality.
At first instance, property has a direct relationship with the owner whereby the
personality is regulated by actual and constructive possession. The latter personality
is evident when there is a shift in actual possession from the true owner to another
person entrusted with the custody of the property. In other words, the personality
shifts with temporary abandonment, but ownership still remains intact via constructive possession. In both these personalities, the property is still an entity conceptualized as a bundle of rights, which can be exclusively exercised by the owner.
130
Academics argue that this bundle of rights gives the owner a legitimate right against
the rest of the world.
131 But this legitimate right of the owner becomes complex in
cases where the property is in adverse possession, and more specifically, when the
property is abandoned in a manner so as to blur the lines between temporary
abandonment and permanent abandonment. From those cases where temporary
abandonment and permanent abandonment cannot be distinguished, it can be
asserted that the owner tends to gain an additional mental right from exercising the
“bundle of rights” that comes with ownership. This additional right can be titled
“right to abandonment” and characterized as having a subtle distinction with the
“right to capital” i.e., the power to alienate the thing that includes the power to
consume, waste, modify, or destroy it.
132 If the right to abandonment is exercised in
a manner so as to render the property as permanently relinquished, given up or
renounced, then the property is a res nullius. Until the time that res nullius or res
derelict is owned by a finder by occupatio, the bundle of rights remain dormant. The
diametric personality of the property is revived the minute the finder establishes a
firm claim over the property by applying for a title of ownership through registration.
Then the finder is positioned as the true owner and the exclusive right over the
property applies against the rest of the world.
Although this “relational governance” facet mainly functions in terms of corporeal real property and incorporeal real property, the same doctrines and the same
principles can be used to examine vessel abandonment and its position in maritime
130 Ziff (2006), p. 2.
131 Merrill (1998).
132 Honoré (1993).
370
T. M. Johansson