What is an Abeyance Order? Definition, Process, and Examples

What Is an Abeyance Order?

An abeyance order is a specific type of court order that temporarily holds a property or legal claim. It involves placing ownership or rights on hold until true ownership or a legal decision is reached. Common scenarios where abeyance orders are applied include real estate, bankruptcy, or legal disputes over titles.

We'll provide examples of how abeyance orders work in legal contexts and their implications in different domains.

How an Abeyance Order Works

Abeyance orders are used in cases where parties are interested in temporarily settling litigation while still holding the right to seek relief later if necessary. This allows an organization to ‘settle’ with the party without officially binding its actions in the future.

Abeyance orders are most often used in bankruptcy proceedings where the court declares that a claim on a property is held in abeyance because the rightful owner of a property, or mortgage holder, is not known, or the court has still to decide whether the property belongs to creditors or heirs.

This situation became common when foreclosures soared after the U.S. housing market collapsed in 2008. In those jurisdictions that followed the lien theory of mortgages, mortgagees do not have title to the property of a delinquent debtor, until an order of foreclosure is granted by a court. Other situations where abeyance orders are used include shipwrecks, where it is still to be determined who has the right to salvage a ship and its cargo.

Real-World Examples of Abeyance Orders

One common scenario in which abeyance orders are used is in the English peerage when a peerage title cannot be passed down due to lack of a legitimate claimant. Most English peerage titles are passed only to sons, but some can be passed to a daughter if she is an only child or if her siblings have died without producing heirs. If there are multiple female heirs, the title will go into abeyance until only one person represents the claims of all the female heirs.

Some English peerage titles have gone into abeyance for hundreds of years in this manner. For example, the Barony of Grey of Codnor was in abeyance for more than 490 years, from 1496 until 1989, when the claim was called out of abeyance to favor the claim of the Cornwall-Legh family.

An abeyance order can also be used to settle litigation on a temporary basis, while still leaving the parties the right to resume litigation later if need be. Organizations with a changeable political perspective or membership may use abeyance in this manner to settle a manner without committing to a future course of action.

For example, a Canadian lawsuit involving the University of Victoria Students’ Society (UVSS) and a campus pro-life club was put into abeyance with UVSS agreeing to temporarily restore the funding it had previously withheld. In this manner, the pro-life club enjoyed a favorable outcome and the UVSS avoided the costs of a lawsuit, while both parties retained the right to go back to court in the future.