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LAWCOMM 442 - Personal Property LN.docx
LAWCOMM_442_-_Personal_Property_LN.docx
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 30
Don Lye
171346040
4P
OSSESSION
OF
T
HINGS
O
N
OR
I
N
L
AND
4.1 T
HE
F
INDERS
C
ASES
E.g. where the true owner drops an item in a field (such as a valuable gold fountain pen)
and a finder picks it up.
Contest between the finder and the occupier of the land, assuming that the true owner is
not in the picture.
o
Occupier of the land – rather than the owner, although they can be the same
person.
Occupier must demonstrate that it took active steps to control things on the land – if the
test is met the occupier has superior claim in relation to the finder.
4.1.1
The General Principles Governing an Occupier’s Claim
Finders’ cases are quite diverse – consider the broader framework.
Providing that the occupier has taken certain steps, the occupier has the superior claim.
The relevant question is therefore whether the occupier has manifested intention to
exercise control.
o
A careful examination of the particular facts.
o
Degree of control will be different in each case.
o
E.g. bistro with tables on the pavement outside – pedestrian drops banknotes on the
footpath – difficult for the bistro to argue that it is asserting control over the public
thoroughfare.
Bistro’s argument may be strengthened if the banknotes are found under the
bistro’s table – since the tables are monitored by the bistro’s employees.
Bistro’s argument would be even stronger if the banknotes were found inside
the bistro in an employees-only area.
4.1.1.1
South Staffordshire Water Co v Sharman
[1896] 2 QB 44
Lord Russell of Killowen CJ
“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 [occupier] of the locus in quo."
30
Page 31
Don Lye
171346040
4.1.2
Things On or Upon Land
4.1.2.1.1
Hibbert v McKiernan [1948] 2 KB 142
4.1.2.2
Parker v British Airways Board
[1982] QB 1004 (EWCA)
Parker is in the executive lounge in Heathrow airport and finds a gold bracelet.
The executive lounge is leased to British Airways – the occupier.
Parker hands it in to a BA official – gives them his name and address and asked for it back if the
owner did not claim it.
BA waits for a period of time – before selling the gold bracelet for a significant amount.
Parker sues BA for the money.
Donaldson LJ
“
Rights and obligations of the finder
1.
The finder of a chattel acquires no rights over it unless (a) it has been abandoned or
lost and (b) he takes it into his care and control.
2.
The finder of a chattel acquires very limited rights over it if he takes it into his care
and control with dishonest intent or in the course of trespassing.
3.
Subject to the foregoing and to point 4 below, a finder of a chattel, whilst not
acquiring any absolute property or ownership in the chattel, acquires a right to keep it
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 his care and control.
4.
Unless otherwise agreed, any servant or agent who finds a chattel in the course of his
employment or agency and not wholly incidentally or collaterally thereto and who
takes it into his care and control does so on behalf of his employer or principal who
acquires a finder's rights to the exclusion of those of the actual finder.
5.
A person having a finder's rights has an obligation to take such measures as in all the
circumstances are reasonable to acquaint the true owner of the finding and present
whereabouts of the chattel and to care for it meanwhile.”
“
Rights and liabilities of an occupier
1.
An occupier of land has rights superior to those of a finder over chattels in or attached
to that land and an occupier of a building has similar rights in respect of chattels
attached to that building, whether in either case the occupier is aware of the
presence of the chattel.
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.
3.
An occupier who manifests an intention to exercise control over a building and the
things which may be upon or in it so as to acquire rights superior to those of a finder
is under an obligation to take such measures as in all the circumstances are
reasonable to ensure that lost chattels are found and, upon their being found,
whether by him or by a third party, to acquaint the true owner of the finding and to
care for the chattels meanwhile. The manifestation of intention may be express or
implied from the circumstances including, in particular, the circumstance that the
occupier manifestly accepts or is obliged by law to accept liability for chattels lost
upon his " premises," e.g. an innkeeper or carrier's liability.
31
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