Abandoned Property and the Rights of Finders

Introduction

It is often recognised that “questions concerning the ownership of lost property are among the most difficult and contested in all of personal property law”. [1] While case law at an initial glance does suggest that the judges face many problems in determining finder’s rights, this does not necessarily prove that finder’s rights are difficult to define. Although much academic literature claims that the law is unclear [2] , it is arguably difficult to adopt a consistent approach in this area of the law. The situations in which finder’s rights will find their centre stage are potentially endless; thus a narrow approach adopted in the interests of consistency could cause more problems than currently exist. The courts’ approach to the ambit of finder’s rights will be assessed, in an attempt to locate a rationale which assigns necessity to the somewhat confusing case law. Ultimately, it will be proposed that, in order for the law to apply in particular circumstances [3] any direct clarity of finder’s rights is unlikely.

Finder’s Rights – Legal Overview

Perhaps the most initial and thus relevant case concerning finder’s rights is that of Armory v Delamirie, [4] which states that finders of lost or abandoned property are generally assigned rights as against all others, except the true owner. [5] Immediately the distinction between lost and abandoned chattels becomes apparent; the finder of the latter assigned rights even against the initial owner. This also seems to be the cause of problems of finder’s rights in relation to abandoned chattels; the courts appear reluctant to adopt a ‘catch-all’ approach in an area of the law that does not necessarily advocate the ‘finders keepers, losers weepers’ principle entirely. While a finder’s rights are likely to prevail over a third party in relation to lost property [6] , case law concerning finders of abandoned chattels are somewhat more difficult to define. The primary problem of the law, however, is in distinguishing between abandoned and lost chattels.

Distinguishing Between Lost and Abandoned Chattels

It appears that how the courts define what is abandoned as to lost property is somewhat confused, particularly in unclear cases. What is clear is that the courts adopt a careful approach when establishing property as abandoned, and cases such as Hibbert v McKiernan [7] refer to both lost and abandoned chattels. While the decision that chattels are abandoned hinges on intention, this does not gain much ground in clarifying the law, for items which may seem abandoned could indeed be lost, and vice versa. The case of Moffatt v Kazana, does not bring much more clarification; Wrangham J states that “forgotten” property does not constitute abandoned property. [8] Yet how can the courts determine whether chattels have been forgotten, abandoned, or lost? A pair of shoes left by a rubbish bin are almost obviously abandoned, a pair of shoes left on a train brings complication to the situation. They may have been left by accident and thus lost, or the owner may have bought a new pair and left them for a passerby who may take fancy to them. The ability of the courts to make such observations is rather testing. The law seems to distinguish between items lost and items “intentionally put down,” [9] although how this is to be determined poses problems. The value of an object is also considerably important; a valuable object is less likely to be classed as abandoned [10] and almost immediately places it into the ‘lost’ category. Such observations beg the question: do we really need regulation of finder’s rights in relation to abandoned objects, if they are most likely to be objects of little value?

Case law does convey some degree of reluctance in classing chattels as abandoned, as the courts prefer to keep the potential re-claim of original owners intact. [11] But while the law in relation to lost property attempts as far as possible to reunite the chattel with its original owner, the law relating to abandoned chattels is to prevent finders resorting to force to claim their rights to property over another ‘finder’. The courts thus adopt a common sense approach, and whether a found item is classed as one or the other will depend on the specific circumstances of a case. Nevertheless, the courts recognise that the more inconspicuous circumstances require an inferred intention to abandon, and the courts show a clear preference to err on the side of caution. [12] This practice is not revolutionary; many areas of the law involve a complex analysis of circumstances by the courts so that an intention may be found – inferred – from facts. [13] While it may be considered undesirable and uncertain, it is often the only option available – unless those abandoning property are considerate enough to state their intentions in a letter and attach it to property, the situation will not experience any radical changes. [14] However, this does not mean that the law cannot be made clearer, especially in relation to classifying lost and abandoned property. Such clarifications, if considered in light of the differing rights assigned to finders of lost as opposed to abandoned property, are overdue. Much existing case law in relation to abandoned property concerns lost property: [15] perhaps the abolition of this practice could set a clearer divide between the two.

The Requirement of Physical Control

It could be argued that initial problems in defining abandoned property are eased by principles in relation to finder’s rights. The finder of abandoned property is given full ownership of the property, and so the courts appear to adopt a rather concise approach to what is required of a finder before such rights are assigned. The principle of physical control has been developed through case law as a requirement to assign rights to a finder. In The Tubantia, it was acknowledged that full control is not necessary in certain circumstances; where the chattel was a sunken ship beneath the ocean, it was held that control is adequate if another prospective finder cannot achieve the same degree of physical control without the use of force. [16] In this case, the finders had spent money and positioned equipment in order to recover the ship’s contents. This is an appropriate tightening of the Parker principle, which made no reference to the degree of control necessary, [17] and left its ambit open to the undesirable ‘survival of the fittest’ situation in which more than one finder could result in a brawl to gain physical control. This potential problem was established in Popov v Hayashi, in which it was held that A’s steps to take control of the chattel, if disrupted by B’s unlawful act does not allow possessory rights to be taken from the former. [18] The court clearly established through such decisions that it would not uphold or condone any chattels obtained by force, violence, or other such unlawful acts. This principle is a common sense approach of the courts, and while the aforementioned criteria may be classed as vague in the definition of physical control, the courts have not been too eager to find sufficient physical control in every case. Where the effort exerted by the ‘finder’ is not considered adequate, the courts will assign finder’s rights to those who are able to assert more effort than initial ‘finders’; it is not always a case of first come, first served. [19]

Intention to Possess Requirement

The requirement that the finder acquire an intention to possess the chattel is somewhat more complicated, as one is once again faced with the difficulties of defining and finding intention. Exactly what is considered by the courts to be adequate intention arguably leaves much to be desired, although the problems are not much more drastic than the usual problems of finding intention within the law. The main aim of the law here is to ensure that the finder possesses some form of knowledge of the chattel, and in turn to ease problems caused by the smaller degrees of physical control. While cases involving wreckages are easier to define in terms of physical control, the less drastic act of picking an item off the floor requires further elaboration. In Pye v Graham, Lord Browne-Wilkinson stressed the need for intent nto possess in terms of “an intention to exercise such custody and control on one’s own behalf and for one’s own benefit”. [20] This does not require an intention to own the property per se [21] – although the distinction is somewhat troublesome in that an intention to own property and an intention to possess it are inherently connected in most circumstances. Suffice it to state that the requirement of intention to possess and physical control are indeed linked, and that achievement of the latter will not always cause the courts to infer the former. [22]

Therefore, a finder with physical control of an abandoned chattel, but without the requisite intention to possess it will not necessarily be awarded ownership. [23] Yet how could one physically possess an item without intending such possession? The law’s approach in this sense is arguably incomplete, and beyond its application to abandoned objects found within chattels, it is difficult to comprehend the philosophy behind its implementation. The courts have attempted to overcome this issue; in the case of Grafstein v Holme and Freeman [24] in which the court inferred an intention to possess if the finder maintained control over the chattel. Is this not another (unnecessary) dimension of the physical control element? A finder who picks up an object and then places it back down cannot be said to achieve physical control, and thus the necessity of this decision is doubtful. Additionally, the court in cases such as Flack, [25] have contradictorily assigned possession to a finder despite their lack of knowledge and intention to possess it. It seems that the courts will infer intention in some cases, and in others it will not – while this allows for flexibility in the law, it is arguably vague and inconsistent.

Chattels Found in Containers

Although the requirement of intention to possess has caused problems thus far in terms of its inconsistent application, its main purpose arises through circumstances in which abandoned chattels are found in containers. Yet, where a potential area for clarity has been created, the courts again seem to struggle with the vast amount of differing circumstances. In some cases, the courts have held that possession of a container can result in constructive possession of what it contains. [26] The principle appears to hinge on two connected elements; that there exist an intention to take control of the containers contents, and the nature of the container in relation to its contents. In the case of Keron, [27] a simple curiosity as to what the container holds is enough to establish intention to take control of its contents. Why an intention to take control of a container does not extend to its contents is difficult to understand, although it is generally accepted that the intention to possess contents depends on the nature of the container. [28] A finder of a purse is more likely to manifest an intention to possess its contents than a finder of a wooden box containing jewels. The mixture of circumstances nonetheless states the obvious; that the courts proceed on a case by case basis.

Abandoned Chattels Found on Another’s Land

It appears that the most pressing problems lie in this area of finder’s rights, which is represented by conflicting decisions such as that of Kowal v Ellis. [29] Through its decision that finders of abandoned property on another’s land can acquire possessory rights known as bailment, a contradiction was created in light of finder of lost property, who will not usually acquire such rights. However, it is to be stated that the rationale behind the law in relation to finders of lost property as opposed to abandoned property differ significantly. [30] Where the former aims to reunite the lost property with its original owner, the latter’s purpose is to properly assign ownership rights to the finder. [31] It appears thus that any comparison between lost and abandoned property gains little ground, on the basis that each is based on differing rationales.

Yet, if the courts are to blur the categories of lost and abandoned property, such a comparison is necessary and indeed valid. [32] As has already been stated, how a chattel with value can be categorised as lost introduces potential confusion, and it appears that the courts are given a great deal of leeway when deciding such cases. Decisions such as Hibbert v McKiernan [33] suggest the growing need for clarity, lest criteria for lost property and requirements of abandoned property become severely overlapped. This decision effectively brought the requirement of a reasonable exercise of control over a landowner’s land into the realm of abandoned property, an element which should remain within its lost property realm. In any case, it has been commented that this requirement of physical control is somewhat odd, and how it can apply to a landowner who has no knowledge of chattels on his land highlights the problems in relation to both finders of abandoned and lost property. [34] The confusion is blinding, and the inconsistency of case decisions lies beyond flexibility – perhaps the time has arrived for a complete overhaul of all the principles a rewrite of existing elements in a concise manner. The mere existence of the confusion in the courtroom as to the distinction between which principles apply to lost and abandoned property brings several problems in the law – problems which are not necessary and could be clarified. If judges cannot understand fully the application of the law in the two separate spheres, how a finder is able to understand his rights leaves much to be desired.

Conclusion

Beyond the most basic principles of finds rights in relation to abandoned chattels, the situation is simply confusing. While judges apply the same principles to both lost and abandoned property, a more clearly defined distinction is required, for the aim of the law in connection to the two circumstances is inherently different, and should thus be kept within its own sphere. Many problems exist within the law as to when intention to possess will be inferred, and when it will not, and while this brings flexibility in relation to specific circumstances, it does so at the risk of inconsistency. Indeed, such flexibility creates the need for more stringent principles upon which the courts should be able to proceed. The main problem in this area of the law is the vast potential array of circumstances to which the law must apply, and the struggle of the courts to interpret the law is clearly evident. This is not to state that flexibility should be compromised; it is to suggest that such flexibility requires a more stringent basis from which to proceed. While it is the general proposition that “the legal treatment of abandoned property differs from lost or mislaid property,” [35] the case is evidently not as clear cut as some would consider. [36] Even judges recognise the incoherency of the law, and state their confusion in relation to what principles apply to lost property, and when they will overlap to apply to abandoned property. [37]

What is required? The most pressing need is a clearer distinction between lost and abandoned property, and a definition of when the principles will and will not overlap. A clearer understanding is also required as to when intention will be inferred and when it will not be, and to what extent possession is required to result in constructive possession of an abandoned chattel. Perhaps the most pressing problem is the law relating to abandoned objects found on another’s property. It is highly suggestible that a land owner should not be automatically assigned possessory title of abandoned property on his land. While this is satisfactory for lost property, the rationale has already been defined as different, and thus not necessarily caught within the ambit of the exercise of control over one’s property. The conflict between the land owner’s exercise of control over his land, and the finder’s physical control over an abandoned chattel requires clear-cut definition, and a clarification as to when one will prevail over the other, and in which circumstances. Moreover, conflicts between statutory provisions and case law are possibly the catalyst in problems, and thus display the need for a coordination of both, so that perhaps a more streamlined approach may be provided by the courts in relation to its application of legislation. [38] Perhaps this is an appropriate starting point.