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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 35
Don Lye
171346040
title elsewhere, the right to possess it also. And it makes no difference that the
possessor is not aware of the thing's existence
”.
o
“But it seems preferable to say that the legal possession rests on a real de facto
possession costituted by the occupier's general power and intent to exclude
unauthorised interference
.”
4.1.3.1
Parker v British Airways Board
[1982] QB 1004 (EWCA)
Donaldson LJ
Obiter statements regarding the situation “of chattels which are attached to realty (land or
buildings) when they are found”.
o
“If the finder is not a wrongdoer, he may have some rights, but the occupier of the
land or building will have a better title. The rationale of this rule is probably either
that the chattel is to be treated as an integral part of the realty as against all but
the true owner and so incapable of being lost or that the " finder " has to do
something to the realty in order to get at or detach the chattel and, if he is not
thereby to become a trespasser, will have to justify his actions by reference to some
form of licence from the occupier. In all likely circumstances that licence will give
the occupier a superior right to that of the finder.”
Commentary
Suppose you have a house and suppose someone enters and digs and identify goods and
remove them and purport to have them.
o
Firstly, someone had to enter the property. As we saw in Tamworth, members of the
public might have an implied licence to enter for legitimate purposes. Assuming no
authority was given (no implied right), in order to find the goods, they have to dig –
this is interreference without consent.
o
There is trespass, interference and removal of goods without the consent of the
occupier.
o
As such – at some point, the finder becomes a trespasser – land occupier’s right
would become superior.
Suppose a different situation where you authorise a gardener to dig in your garden – who
finds something.
o
However, even through consent has been given to dig, likely that no consent was
given to convey ownership onto the gardener for things found. The court will
consider at that point, no express consent has been given to take possessory
ownership of the goods found.
o
Further note that the gardener would be the land occupier’s employee?
In objects on land – requirement that the land occupier exercise manifest intent to control
land – however, does not apply to objects in land. Degree of control is far less important.
o
Likely that the minimum requirement is that the land occupier can prevent
interference with the land. Occupier would have this right generally.
4.1.3.2
Waverley BC v Fletcher
[1995] 4 All ER 756 (EWCA)
Plaintiff city council owned the freehold of the park.
Park was open to members of the public 24/7.
Defendant used a metal detector in the park – arguable not an authorised activity – could mean
that the defendant was a trespasser.
Defendant finds a medieval brooch and digs it up – was below the surface.
35
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