abandonment (redirected from Elements of Abandonment)

The surrender, relinquishment, disclaimer, or cession of property or of rights. Voluntary relinquishment of all right, title, claim, and possession, with the intention of not reclaiming it.

The giving up of a thing absolutely, without reference to any particular person or purpose. For example, vacating property with the intention of not returning, so that it may be appropriated by the next comer or finder. The voluntary relinquishment of possession of a thing by its owner with the intention of terminating ownership, but without vesting it in any other person. The relinquishing of all title, possession, or claim, or a virtual, intentional throwing away of property.

Term includes both the intention to abandon and the external act by which the intention is carried into effect. In determining whether someone has abandoned property or rights, the intention is the first and paramount object of inquiry, for there can be no abandonment without the intention to abandon.

Abandonment differs from surrender in that surrender requires an agreement, and also from Forfeiture, in that forfeiture may be against the intention of the party alleged to have forfeited.

In the case of children, abandonment is the willful forsaking or forgoing of parental duties. Desertion as a legal concept, is similar in this respect, although broader in scope, covering both real and constructive situations; abandonment is generally seen as involving a specific and tangible forsaking or forgoing.

Property That Can Be Abandoned

Various types of personal property—such as personal and household items—contracts, copyrights, inventions, and Patents can be abandoned. Certain rights and interests in real property, such as easements and leases, may also be abandoned. Suppose a ranch owner, for example, gives a shepherd an easement to use a path on her property so that the sheep can get to a watering hole. The shepherd later sells his flock and moves out of the state, never intending to return. This conduct demonstrates that the shepherd has abandoned the easement, since he stopped using the path and intends never to use it again. Ownership of real property cannot be obtained because someone else abandoned it but may be gained through Adverse Possession.

Elements of Abandonment

Two things must occur for property to be abandoned: (1) an act by the owner that clearly shows that he or she has given up rights to the property; and (2) an intention that demonstrates that the owner has knowingly relinquished control over it.

Some clear action must be taken to indicate that the owner no longer wants his or her property. Any act is sufficient as long as the property is left free and open to anyone who comes along to claim it. Inaction—that is, failure to do something with the property or nonuse of it—is not enough to demonstrate that the owner has relinquished rights to the property, even if such nonuse has gone on for a number of years. A farmer's failure to cultivate his or her land or a quarry owner's failure to take stone from his or her quarry, for example, does not mean that either person has abandoned interest in the property.

A person's intention to abandon his or her property may be established by express language to that effect or it may be implied from the circumstances surrounding the owner's treatment of the property, such as leaving it unguarded in a place easily accessible to the public. The passage of time, although not an element of abandonment, may illustrate a person's intention to abandon his or her property.

Parental Abandonment of Children

Parental abandonment of children is different from other cases of abandonment in that it involves a person rather than property. Abandonment of children is a criminal Cause of Action under most state laws. In the civil context, it arises when a court decides to terminate the natural rights of the parent on the grounds of abandonment to allow Adoption.

In a criminal context, abandonment of children is defined as actually abandoning a child, or failing to provide necessities of living to a child. In California, for example, a parent is guilty of abandonment if they fail to provide "necessary clothing, food, shelter or medical attendance, or other remedial care for their child." A parent is required to accept their minor child into their home, or provide alternative shelter. Parents in California are also punished for "desertion with intent to abandon." These laws are typical of most states.

In the late 1990s, the issue of baby abandonment in the United States came to a head as a result of several high profile cases. These cases prompted 38 states to pass so-called "safe haven laws." The laws decriminalize baby abandonment by allowing mothers to leave their unharmed babies at a designated "safe." location such as a hospital, fire station, or licensed child-placing agency. The laws include a time frame, beginning from the baby's birth, in which abandonment may take place; the time frame varies from state to state, ranging from 72 hours up to one year.

In a civil context, abandonment of a child is usually ruled on by a court to facilitate an adoption. State courts employ various guidelines to determine if a child has been abandoned. In an action for adoption on the ground of abandonment, the petitioner generally must establish conduct by the child's natural parent or parents that shows neglect or disregard of parental duties, obligations, or responsibilities. They must also show an intent by the child's parent or parents to permanently avoid parental duties, obligations, or responsibilities. Some jurisdictions require an actual intention of the parents to relinquish their rights to find abandonment, but most allow a finding of abandonment regardless of whether the parents intended to extinguish their rights to the child.

Further readings

Brunette, Stephen A. 2001. Cause of Action for Adoption Without Consent of Parent on Ground of Abandonment. Causes of Action Series, 1st ser. Eagan, Minn.: West.

Magnusen, Debbie. 2001–02. "From Dumpster to Delivery Room: Does Legalizing Baby Abandonment Really Solve the Problem?" Journal of Juvenile Law 22.

Vassilian, Karen. 2001. "A Band-Aid or a Solution? Child Abandonment Laws in California." McGeorge Law Review (winter).

Cross-references

Desertion.

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abandonment n. the act of intentionally and permanently giving up, surrendering, deserting or relinquishing property, premises, a right of way, a ship, contract rights, a spouse and/or children. Abandonment of a spouse means intent at permanent separation, and with children a lengthy period of neither contact nor any support. In maritime law abandonment has a special meaning: when an owner surrenders a ship and its contents to a trustee for the benefit of claimants, particularly after a wreck. If one invents something and does not get a patent but allows others to use the invention or dedicates it to public use, the right to patent is probably abandoned. Confusion arises over abandonment of water rights, mining rights, or rights of way, since mere non-use is not sufficient to show abandonment. (See: abandon, abandoned property, patent)

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abandonment (Desertion), noun abrogation, cession, decampment, defection, demission, dereliction, disaffection, disavowal, evacuation, flight, hasty departure, relinquishment, repudiation, retirement, vacating, withdrawal
Associated concepts: abandonment of a child, abandonment of a husband, abandonment of a property, abandonment of a wife, abandonment of land, dissolution of marriage, Enoch Arden laws
Foreign phrases: Occupantis fiunt derelicta.Things abannoned become the property of the first who is the occupant.

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abandonment (Discontinuance), noun abdication, abrogation, cessation, derelictio, desistance, disjunction, disruption, relinquishment, surrender, withdrawal
Associated concepts: abandonment of a crime, abandonment of a pleading, abandonment of an easement, abandonment of assets in bankruptcy, abandonment of proscriptive rights

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abandonment (Repudiation), noun abnegation, declination, denial, disapprobation, disapproval, disavowal, dismissal, disownment, rejection, renunciation, reprobation, rescission

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See also: abdication, abjuration, absence, cancellation, capitulation, cessation, cloture, dereliction, desertion, desuetude, disclaimer, disuse, estrangement, expense, halt, neglect, negligence, rejection, release, relinquishment, renunciation, rescision, sacrifice, termination, waiver

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ABANDONMENT, contracts. In the French law, the act by which a debtor surrenders his property for the benefit of his creditors. Merl. Rep. mot Abandonment.

ABANDONMENT, contracts. In insurances the act by which the insured relinquishes to the assurer all the property to the thing insured.
     2. No particular form is required for an abandonment, nor need it be in writing; but it must be explicit and absolute, and must set forth the reasons upon which it is founded.
     3. It must also be made in reasonable time after the loss.
     4. It is not in every case of loss that the insured can abandon. In the following cases an abandonment may be made: when there is a total loss; when the voyage is lost or not worth pursuing, by reason of a peril insured against or if the cargo be so damaged as to be of little or no value; or where the salvage is very high, and further expense be necessary, and the insurer will not engage to bear it or if what is saved is of less value than the freight; or where the damage exceeds one half of the value of the goods insured or where the property is captured, or even detained by an indefinite embargo ; and in cases of a like nature.
     5. The abandonment, when legally made transfers from the insured to the insurer the property in the thing insured, and obliges him to pay to the insured what he promised him by the contract of insurance. 3 Kent, Com. 265; 2 Marsh. Ins. 559 Pard. Dr. Coin. n. 836 et seq. Boulay Paty, Dr. Com. Maritime, tit. 11, tom. 4, p. 215.

ABANDONMENT. In maritime contracts in the civil law, principals are generally held indefinitely responsible for the obligations which their agents have contracted relative to the concern of their commission but with regard to ship owners there is remarkable peculiarity; they are bound by the contract of the master only to the amount of their interest in the ship, and can be discharged from their responsibility by abandoning the ship and freight. Poth. Chartes part. s. 2, art. 3, Sec. 51; Ord. de la Mar. des proprietaires, art. 2; Code de Com. 1. 2, t. 2, art. 216.

ABANDONMENT, lights. The relinquishment of a right; the giving up of something to which we are entitled.
     2. Legal rights, when once vested, must be divested according to law, but equitable rights may be abandoned. 2 Wash. R. 106. See 1 H. & M. 429; a mill site, once occupied, may be abandoned. 17 Mass. 297; an application for land, which is an inception of title, 5 S. & R. 215; 2 S. & R. 378; 1 Yeates, 193, 289; 2 Yeates, 81, 88, 318; an improvement, 1 Yeates, 515 ; 2 Yeates, 476; 5 Binn. 73; 3 S. & R. 319; Jones' Syllabus of Land Office Titles in Pennsylvania, chap. xx; and a trust fund, 3 Yerg. 258 may be abandoned.
     3. The abandonment must be made by the owner without being pressed by any duty, necessity or utility to himself, but simply because he wishes no longer to possess the thing; and further it must be made without any desire that any other person shall acquire the same; for if it were made for a consideration, it would be a sale or barter, and if without consideration, but with an intention that some other person should become the possessor, it would be a gift: and it would still be a gift though the owner might be indifferent as to whom the right should be transferred; for example, he threw money among a crowd with intent that some one should acquire the title to it.

ABANDONMENT, malicious. The act of a husband or wife, who leaves his or her consort willfully, and with an intention of causing perpetual separation.
     2. Such abandonment, when it has continued the length of time required by the local statutes, is sufficient cause for a divorce. Vide 1 Hoff. R. 47; Divorce.