The Modern Rules of Finders-Keepers - Case Study Example

Conventional wisdom dictates that the owner of real property has the best to lost property uncovered on land. However there are circumstances which can arise to complicate matters such as leased premises, property to which the public has access and claims from predecessors in title.1 As a result of thee variables the law relating to the ownership of finding lost chattels is far from clear. D. R. Harris notes that: The topic of loss and finding of chattels has provided some of the most difficult problems on possession in English law.2 David Hoath maintains that the case of Parker v. British Airways Board has made some inroads with respect to this area of the law by providing some basic principles and guidelines for the determination of title to the finding of lost chattels.3 Even so, any clarification offered by Parker v British Airways Board has been blurred in light of the cases that followed it.4 Hoath goes on to suggest that the catalyst for the lack of clarity in and around the law of finding disputes is largely attributable to the lack of attention and recognition to this area of law. 5 At the end of the day the age-old maxim ‘finders-keepers’ is not all that straightforward. An obvious conflict arises between he maxim ‘finder-keepers’ and the concept that an owner or occupier of land retains all rights to property which is either in or attached to the land where the object is discovered. In an early case the maxim ‘finder-keepers’ was found to be subject to any claims by the rightful owner.6 In this case, Armory v. Delamirie (1722) 1 Str. 505 the land owner made no claim to an item of jewelry found by a chimney sweeps’ boy and the ensuing dispute arose between the boy and a jeweler.7 The modern rules of ‘finders-keepers’ is largely developed around the court’s findings in the case of Elwes v Brigg Gas Co. (1886) 33 Ch.D. 562. Chitty J made it abundantly clear that in finding disputes the critical question of property entitlement was dependant upon ownership and/or lawful possession of the property where the lost object was discovered. In this case a prehistoric boat which had been buried 6 feet deep in the earth on demised premises was discovered by lessee. Chitty J maintained that the owner of the demised property was entitled to possession of the object uncovered. Chitty J held: he was in possession of the ground, not merely of the surface, but of everything that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat. . . . The plaintiff then, being thus in possession of the chattel, it follows that the property in the chattel was vested in him. Obviously the right of the original owner could not be established; it had for centuries been lost or barred . . . The plaintiff, then, had a lawful possession, good against all the world, and therefore the property in the boat. In my opinion it makes no difference, in the circumstances, that the plaintiff was not aware of the existence of the boat.8 In the case South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44, the court distinguished between the concept of attached and unattached objects but extended the finding principle to be indistinguishable but subject to a landowner’s manifest intention to exercise his control over real property and everything found in or attached thereto. In this case an employee instructed to clean a pool found two rings at the bottom of the pool and a dispute arose between him and the owner of the land upon which the pool was situated. It was held that: the general principle seems to me to be that where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo.9 In Parker v. British Airways Board [1982] Q.B. 1004 an unknown traveler lost a bracelet at a departure lounge leased by British Airways lounge at the airport and was subsequently found by Parker. The departure lounge was used by specified classes of passengers. Parker was a passenger using the lounge at the time. Upon finding the lost bracelet he turned it into a staff member or British Airways and asked that should the bracelet fail to be claimed he would like it relinquished to him. The bracelet was not claimed and British Airways sold it and retained the proceeds of 850 pounds. Parker took an action against British Airways in the County Court and was awarded 850 pounds in damages as well as 50 pounds in interest. British Airways filed an appeal.10 On appeal it was held Donaldson J made a salient observation regarding the sate of law in respect to the finding of lost chattels. He said: In 1971 the Law Reform Committee reported that it was by no means clear who had the better claim to lost property when the protagonists were the finder and the occupier of the premises where the property was found. Whatever else may be in doubt, the committee was abundantly right in this conclusion. The committee recommended legislative action but, as is not uncommon, nothing has been done. The rights of the parties thus depend upon the common law.11 In an attempt to clarify the law in relation to the finding of lost chattels Lord Donaldson maintained that it was necessary to first identify the general rule of law and examine them against the respective duties and obligations of both the finder and the occupier. Donaldson J went on to list five duties and obligations assignable to the finder of a lost chattel. They can be summarized as; 1) the finder only acquires a right over a lost chattel if it was actually lost or abandoned and the finder proceeds to take custody and control of the lost object; 2) If the finder is a trespasser he acquires restrictive rights should he find and take control of a lost chattel; 3) Subject to items 1,2 and 4 of this list, the finder has a right to retain custody of a lost chattel ‘against all but the true owner or those in a position to claim through the true owner or one who can assert a prior right to keep the chattel which was subsisting at the time when the finder took the chattel’ into custody;124) In the absence of an agreement to the contrary any employee or servant or agent finding a lost object and takes custody of it does so as trustee for his employer or principal; 5) A finder has a duty to take reasonable steps to bring his or her finding to the attention of the true owner and to preserve the integrity of the finding.13 The rights and liabilities assigned to an occupier was described by Lord Donaldson as; 1) The rights of an occupier is superior to those of a finder and can be aligned to the rights assigned to attached chattels; 2) ‘An occupier of a building has rights superior to those of a finder over chattels upon or in, but not attached to, that building if, but only if, before the chattel is found, he has manifested an intention to exercise control over the building and the things which may be upon it or in it;’143) An intention to exercise control is manifested by taking reasonable steps to ‘ensure that lost chattels are found.’15 4) Occupiers of movable property will be treated in the same manner as occupiers of immovable property.16 Applying these guidelines the appeal was dismissed. Donald J held that there was no manifestation of intention to exercise control over lost chattels before they were found on behalf of British Airways and as such they did not acquire a right superior to the finder who was lawfully on the premises.17 Following this decision, Waverley Borough Council v Fletcher [1995] 4 All ER 756 represented a conflict between the finders-keepers maxim and concept pertaining to the superior rights of the owner and occupier of property. In this case, Waverly Borough Council owned the freehold title to Farnham Park which was freely accessible to the public at large. The part was controlled by the presence of a ranger, other staff and by-laws. In August of 1992 Ian Fletcher was in possession of a metal detector at the park and conducted a search for objects of value during which he discovered an antique gold brooch buried in nine inches of soil. He turned his find over and a coroner’s inquest ensued to determine whether or not the brooch was a treasure trove. The inquest determined it was not and the brooch was returned to Fletcher. The council filed proceeding for a declaration of entitlement and return of the brooch or damages.18 Fletcher raised the defence of ‘finders-keepers’ and further argued that although the plaintiff had the freehold title to the park they were not the exclusive occupiers of the property and since he was a lawful visitor to the park and the rightful owner had not been identified he was entitled to retain possession. The judge at first instance agreed with Fletcher. However, on appeal the Court of Appeal did not agree.19 Auld L.J. found that Fletcher did not derive a right to retention of the brooch merely because he was a member of the public and entitled to recreational use of the park. Auld L.J. went on to say: given the councils statutory powers and duties, the terms under which it holds and controls and manages the park and the way in which it exercises that control and management, I would regard it as clearly having the requisite intent and ability to control.20 As Hoath points out predecessors in title can further complicate matters pertaining to the conflict between the maxim finders-keepers and the superior rights of an owner of real property. In Moffat and Another v. Kazana [1968] 3 All ER Mr. and Mrs. Russell purchased a home in the year 1950 at which time Mr. Russell hid a sum a biscuit tin containing cash in a roof of the dwelling house. Approximately eleven years later the house was sold to Mr. Kazana at which time Kazana engaged an installer for the purpose of installing an appliance. The installer discovered the money and turned it over to the police. Since it was not subsequently claimed the funds were returned to Mr. Kazana and Mr. Russell pursued the matter via the courts for the return of his funds. During the course of the proceedings Mr. Russell passed away but the action was continued by via representatives of his estate. It was held that Mr. Russell had not abandoned or gifted the funds and as such had not divested himself of possession. He did not intend to divest himself of the hidden tin when he sold the dwelling house, the executor of his estate would therefore have possession of the funds.21 Hoath maintains that the case of Moffat and Another v. Kazana [1968] 3 All ER is consistent with the rule of thumb that the true owner of lost chattels have superior claims over owner’s of the property where the lost chattel is found and over the rights of a finder who is not a trespasser.22 Another confusing aspect of the law of findings is manifested in the case of Hannah v Peel (1945) 1 K.B. 509. In this case the defendant owned a dwelling house but did not occupy it. During World War II the army occupied the house and the plaintiff, Hannah occupied the house. During his occupation he discovered a brooch and turned it over to the police when the brooch failed to be claimed, the police returned the brooch to Hannah. Peel in turn brought an action for possession of the brooch as owner of the dwelling house in which it was discovered.23 The issue for the court was whether or not unattached chattels discovered on property rightfully vested in the absent owner or the property. It was held that the general rule of law maintained that when an unattached article was discovered the finder had a right to retention of the article until the real owner laid claim to the article. The court decided that a man might retain possession of chattels that are attached to his property or under them, but it does not automatically follow that he retains possession of unattached chattels that are properly only on the land’s surface.24 The difficult y with the state of the law on finding of lost chattels is that it contradicts the notion that title to land passes with an understanding that all property inside the dwelling house and on the property passes with the title. Haoth suggest that the only sensible route for overcoming the inconclusive nature of this area of law is as follows: The cautious conveyancer may therefore sometimes wish expressly to cater for the possibility of an article of value being subsequently found on the property which is being sold or leased; indeed, the insertion of clauses of this type is already common practice in building and engineering contracts.25 Bibliography Armory v. Delamirie (1722) 1 Str. 505 Clarke, Allison and Kohler, Paul. Property Law: Commentary and Material. Cambridge University Press, 2005. Elwes v Brigg Gas Co. (1886) 33 Ch.D. 562 Hannah v Peel (1945) 1 K.B. 509 Hoath,David. “SOME CONVEYANCING IMPLICATIONS OF "FINDING" DISPUTES”. Conv. 1990, SEP/OCT, 348-357 Moffat and Another v. Kazana [1968] 3 All ER Parker v. British Airways Board [1982] Q.B. 1004 South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44 Waverley Borough Council v Fletcher [1995] 4 All ER 756 Read More