2020/21 LW2252: LAW OF PROPERTY

TOPIC 4: THE FINDING OF PROPERTY ON LAND 

What is this topic about?

It deals with the question of who has the best claim to an item that’s found on
someone’s land. As you’d expect, the person who lost the property will have the best
right to it. The problem we are interested in is what happens if that person doesn’t
make a claim. That could happen if the object was lost or hidden a very long time ago,
as in the Webb v Ireland case. It’s also possible that the owner mightn’t know where
he or she lost the item, as probably happened in Parker v British Airways where a
gold bracelet was found on the floor of an airport lounge. Where the “true owner” is
not around to make a claim, the competition is between the person who found the
item and the person who owns the land on which it was found. You might think that
the finder should always win, maybe on the basis of the saying that “finders keepers,
losers weepers”. On the other hand, that might not seem so reasonable if the object
was found in a very private place (like in the living room of your house) or if the finder
was trespassing on the land when he or she made the find. We’ll see that the law
makes an important distinction between (i) cases where the object was found “on”
the land and (ii) cases where it was buried “in” the land and the finder had to uncover
it. The law in this area was only settled quite recently and the courts tried to make
rules that would improve the chances that the person who lost the property would be
able to get it back. The State may also have a claim if the item that’s found is of
archaeological importance.

How does this topic fit in with the rest of the course? The course is mostly about land
law except for the Law of Succession which deals with what happens to all types of
property when the owner dies. This topic is about land law in that it deals with the
rights that the owner of land has over items of personal property (e.g. a wallet or a
bracelet or an ancient chalice) that are on the land. Looking at it another way, it is
about personal property and the rules that decide when a person can claim it by
taking possession of it. One idea that we have mentioned already is that ownership is
“relative”. In the current topic, this is illustrated by the fact that neither of the two
people who are competing – the land-owner and the finder of the property – is the
“true” owner of the item that has been found. We are trying to decide which of the
two has the better claim, even though neither has the very best claim. You will see
the same idea at work in a topic in the Law of Property II, in the topic about Adverse
Possession, where it will be seen that a squatter who takes possession of land has a
“second-best” title to the land, which he or she can even sell to someone else.

CORE READING
Webb v. Ireland [1988] IR 353
Parker v. British Airways Board [1982] QB 1004 (Westlaw.uk)
Chairman, National Crime Authority v Flack (1998) 156 ALR 501

(a)  Objects found on land

Parker v. British Airways Board [1982] QB 1004 (Westlaw)
Did occupier manifest an intention to exercise control?
Approved by Supreme Court in Webb v. Ireland [1988] IR 353

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Two examples of Parker test in action:

Chairman, National Crime Authority v Flack (1998) 156 ALR 501: an Australian case
where a briefcase containing cash was found by police hidden in a high cupboard in
Flack’s house; she succeeded in recovering the money after the conclusion of the
investigation because as occupier of the house she was presumed to have an intention
to possess all items in the house, even those she knew nothing about.

Tamworth Industries Ltd v Attorney-General [1991] 3 NZLR 616 (New Zealand case on
Lexis): money found by police hidden under rotten floorboards in derelict house on a
site to which wide range of people had access; occupier, who had been acquitted on
drugs charges, subsequently failed to recover the property.

(b)  Objects found in land

Occupier will always have a better claim when object is in land. Majority approval in
Webb. 

Waverley Borough Council v Fletcher [1995] 4 All ER 756 (Lexis): justification for rule.
 
(c) Finding and the State
Webb – Art 10 and Art 5 of Constitution.
Question of a reward – legitimate expectation on facts.

National Monuments (Amendment) Act, 1994

s 2(1): “[T]here shall stand vested in the State the ownership of any archaeological
object found in the State after the coming into operation of this section where such
object has no known owner at the time when it was found.”

s 14: “‘archaeological object’ means any chattel whether in a manufactured or partly

manufactured or an unmanufactured state which by reason of the archaeological
interest attaching thereto or of its association with any Irish historical event or person
has a value substantially greater than its intrinsic (including artistic) value, and the said
expression includes ancient human, animal or plant remains”

s 10: discretion in the Director of the National Museum (provided it is in the public
interest to do so) to grant a reward to the finder or to the owner or occupier of the land,
taking into account the intrinsic value and the general historical and archaeological
importance of the object found; the circumstances of the finding of the object; and the
amount of the rewards paid in the State in respect of the finding of other comparable
archaeological objects.

(d)  Finding by a trespasser

Parker – trespasser acquires very limited rights. Majority approval in Webb.
Not everyone agrees with this approach: see Hickey “Stealing abandoned goods:
possessory title in proceedings for theft” (2006) 26 Legal Studies 584, 595-598 (on Hein
Online).
 
(e)  Claims by landlords/prior owners
Hoath, “Some Conveyancing Implications of ‘Finding’ Disputes” [1990] Conv 348 (on
Westlaw UK)

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