A finders title
Have you ever found something on land that is not yours? A lost watch? Money? An item of clothing? There are many situations where the true owner of that item is not known or not locatable; where this occurs, other people may have a claim to that property. These include:
- the finder of the object;
- a person in occupation of the land (eg, a tenant);
- a person with a superior right to the land (eg, a landlord);
- the finder’s employer.
It was established in Moffatt v Kazana (1969), that the true owner of an object has a better claim over the found property than anybody else. If the true owner cannot be found however, the question of who has the strongest claim depends on where the property was found.
Objects found in or attached to the land
If the true owner of the property discovered is unidentifiable or unable to be found, the person in lawful possession of the land is entitled to the item found in the land or attached to it. This is even the case where the landowner was unaware of the object before it was found and never showed any intention to control the land.
In Waverley BC v Fletcher (1996), a gold brooch was found 9in underneath the surface of a public park. The court outlined three reasons why items found below the surface of the land should be treated differently from those found on the property:
- An object in land should be treated as an integral part of that land against all but the true owner. So, if the finder of the item is to remove it from the land, they would be doing so without a license or permission and therefore become a trespasser.
- Removal of an object in or attached to land would normally involve interference with the land and may damage it.
- It is unlikely the true owner of the object in the ground would be there to claim the property, whereas if the item was found on the soil it is likely to have been recently lost and the true owner may return to find it.
Case law examples of objects found in or attached to the land include:
- rings found in mud at the bottom of a pool (South Staffordshire Water Co v Sharman (1896));
- a prehistoric boat found six feet beneath the surface (Elwes v Brigg Gas Company (1886)).
Items found on top of the land
The finder of property generally has the right to any object which was found on top of land. This right is usually enforceable against everyone except the true owner of the property.
The courts in Parker v British Airways Board (1982) explained that if the true owner were to come forward she would have the overall best claim to the lost property. The judge stated the following principles.
- The owner of the land where the object was found will only take priority over the finder where the landowner had expressed his intention to control the land and anything found on it prior to the discovery of the lost property.
- The finder of a lost object will have no rights over it unless it has been abandoned or lost and then taken into the control of the person who found it. However, the finder of the lost object will have only limited rights over the property if s/he takes control of the object with dishonest intention or while trespassing on the land.
- The finder of the lost property does not have any absolute ownership over the objects but does gain the right to keep it against all people other than (a) the true owner; (b) a person claiming through the true owner or; (c) someone who can prove prior right to the lost property.
- Unless previously agreed, the person who finds the lost property during his employment on the land and then takes it into his care and control does so on behalf on his employer who then gains the finders rights and excludes the rights of the actual finder.
- The person who has the finders rights has an obligation to take all reasonable steps to find the true owner, state the current whereabouts of the item and care for it in the meantime.
- The occupier of the land has more rights than those of a finder over any items found in or attached to that land.
- An occupier of a building has more rights than the finder of any lost property found upon or in the building but not those found attached to it, only if before the object was found his intention was made clear that he was to exercise control over the building and the things which may be upon or in the building.
The Treasures Act 199
Objects found on my land
An object which falls within the statutory definition of treasure belongs to the Crown. The Treasure Act 1996 applies to items of gold or silver with a 10% content of precious metal provided they are at least 300 years old.