Property Law Essay PDF

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63, property law....

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University of Essex

School of Law

Assignment Feedback and Cover Sheet (Do not write your name on this sheet or your essay)

Module Name: Property Law

Registration Number:

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Module Code: LW109 8

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4

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Number of Words:1918

Date Submitted: 23/04/19

 I have read and understood the University Regulations on Academic offences.  I certify that the attached is all my own work and that the word length stated above is accurate

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Essay Feedback: Level 4 Upper 1st (80+)

1St (70-79)

2.1 (60-69)

2.2 (50-59)

3 (40-49)

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Identifies a wide range of relevant cases and statutes, academic commentary and policy documents, demonstrating research beyond the set material.

Identifies a range of relevant cases and statutes, academic commentary and policy documents; there may be research beyond the set material.

Identifies essential cases and statutes, though there may be minor errors or omissions; does not go beyond the set material

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Identifies some essential cases and statutes,

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critically

the question, though there may be minor errors of understanding

the question; some errors of understanding

Research

but with major omissions; does not go beyond the set materials

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A persuasive, well supported and rigorous argument in response to the question, supported by a clearly structured narrative

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formal written English; uses legal and scholarly language; free from errors

in formal written English; uses legal and scholarly language; occasional errors

generally in formal English; some use of legal and scholarly language; some errors

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Referencing and bibliography

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OSCOLA, with some errors

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with frequent errors in OSCOLA;

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Please note: not all criteria are equally weighted when awarding a mark

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[Start essay here]

The scope in which the law determines the ownership of things in or on land have been heavily scrutinized, In this essay, I shall critically evaluate how the law determines ownership of things that have been found in or on the land and the difficult questions in which arise from the lack of clarity. Firstly, the definition of land as provided by the Law of Property Act 19251, is ‘any land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings and other corporeal hereditaments In a case where things have been found in or on land, the issue at hand is the ownership of that item, there are two main instances in which will be discussed, lost property and treasure. In the case of Bridges v Hawkesworth,2 Panesar mentioned that “[T]he common law treats ownership as a relative concept, where objects are lost or abandoned the law allows the finder to assert a full-blooded ownership right against everyone except the original true owner.”3 Hence when dealing with the law around lost property, as it is personal property the ownership needs to be determined, the original owner has the greatest claim over his/her item over the world. However, if the original owner cannot be identified, the law must then clarify whether the landowner in which the item was found has a claim, or whether it belongs to the finder or in some cases the tenant. It is clear through the logic of caselaw that when an item is found on the surface of land it is usually the finder that would have the greater claim over the landowner, unless the landowner has manifested an intention to exercise control over the building and the item which may be upon or in it. This was made clear in Parker v British Airways Board,4 this case accentuated that the person with the better claim to a lost item is always the original owner over the finder and landowner. In this case Donaldson L.J., who gave the leading judgement, stated that the law regarding issues on ownership was unclear, the fact that the finder who was not the original owner had a greater claim than the defendants(landowners) whose land the item was found upon.

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Property Act 1925, s 205. (1851) 21 LJ QB 75 (CA) 3 S. Panesar, "Theories of Private Property in Modern Property Law" [2000] Denning L.J. 113, 120. 4 [1982] 2 QB 1004 (CA) 2

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However, in Costello v Chief Constable of Derbyshire Constabulary5 it was made clear that whomever had possessory title over a possession has a better claim, as the claimant in the instant case had a better right to the car despite the circumstances in which he obtained the car, as long as it was not unlawfully or through an illegal transaction. This is supported by Lightman J. as he stated that ‘the fact of possession of a chattel of itself gives to the possessor a possessory title and the possessor is entitled to rely on such title without reference to the circumstances in which such possession was obtained.’ Furthermore, as previously mentioned the ownership of a chattel is only valid if the original owner had abandoned or lost their possession6 and also if the landowner had exercised any intention for ownership of things found on their land. This is shown through the case of Waverley Borough Council v Fletcher, 7 in which the finders claim was not better than the Council because following the rule of Parker,8 the brooch was found nine inches below the ground, meaning the owner automatically had a better claim, furthermore despite the park being available to the public, the right to dig in the park was not given, therefore making the claimant a trespasser, which additionally reduced the finders claim. The assertion that a trespasser cannot have a greater claim than that of the landowner was identified in Hibbert v McKiernan9 by Lord Goddard. He stated that ‘every household or occupiers of land intends to exclude thieves and wrongdoers from the property occupied by him, and this confers on him a special property in good found on his land.’ Granting, that when an item is lost or abandoned on the surface of a land the finder has the greatest claim over the landowner but not the original owner, the difficult question arises where there is a need to distinguish whether the item was found ‘in’ the land or ‘on’ the land. This greatly changes who would have the greater claim. This highlights the argument in which may arise in such cases, however the rule is clear and justifies that landowners would only have a greater claim over the finder if the finder was a trespasser or if the landowner had made an indication to seize rights over any item found on their land.

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[2001] EWCA Civ 381 Moffat v. Kazana [1969] 2 QB 152 7 [1995] 4 All ER 756 (CA) 8 [1982] 2 QB 1004 (CA) 9 [1948] 2 KB 142 6

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An issue that also raises difficult questions is what determines an object as treasure and who has the rights to this item, this is a focus on items that are found in land. Naturally based of the understanding of land and ownership of lost or abandoned items, it is landowners who owns whatever is found in their land, however these rules become unclear when involved with treasure. It should be understood that the ‘finders keepers’ principle seen with objects found on land does not apply in such instances. However, if decided that the chattel does not identify as treasure but was still found in the land the landowner would have the greatest claim. This is evident in Elwes v. Brigg Gas Co10 which it was held that landowners have the greatest claim to lost non-treasure objects found under the surface, even if they are found by others on the land legally. The only exemption to this is if an agreement was made with the landowner and the finder preceding the search under the surface for a specific object, then it is usually the case that there will be an even division of the earnings of the find. The law on treasure is now covered by the Treasure Act 1996,11 treasure is defined as ‘any object at least 300 years old when found that is not a coin but has metallic content of which at least 50 per cent by weight is precious metal’, gold and silver would identify as precious metal. If an item is considered as treasure, it automatically becomes the property of the Crown, the act clearly states that all treasure which is found or uncovered is property of the Crown due to the statement in the bona vacantia which allows the Crown a right to all precious objects and by not submitting it to your local coroner could lead to a fine or even imprisonment. However, many academics have noted that there was previously an inconsistency with what was defined as treasure, in the case of Attorney General of the Duchy of Lancaster v. GE Overton (Farms) Ltd, 12 there was an ambiguity in what constituted as treasure, based on whether there was a sufficient metal content. It was held by Dillion J that the Crown could only claim objects which were made of gold and silver and not of baser metals, this disregarded the view made by Blackstone that the Crown had a prerogative over “any money or coin.”13 This judgement conveyed the inconsistency of the previous common laws of treasure 10

(1886) 33 Ch. D. 562 Treasure Act 1996, s 4. 12 [1981] Ch. 333; [1980] 3 All E.R. 503 Ch D. 13 Blackstone, Commentaries on the Laws of England 1765-1769, (1979). 11

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trove, N.E. Palmer commented that the laws on treasure trove “showed a pitiable inadequacy as an instrument of archaeological preservation.”14 Furthermore, the previous laws unlike the new Treasure act failed to identify objects which may not have a monetary value but perhaps an archaeological value, such as in the case Waverley BC v. Fletcher15 when a gold brooch was found in a public park by a metal detector enthusiast, the coroner held that the gold brooch did not qualify as treasure as there was no evidence of concealment, meaning the public were able to claim the brooch. As mentioned by McMillan there is a need for a treasure act in which values the “historical and cultural importance”16 of objects rather than only monetary importance and whether it was concealed or not. Hill observed that based on the common laws of treasure trove, treasures were melted down in order to provide revenue for the Crown, Hill states that the government have now become more aware of the historical and cultural importance of artefacts rather than just melting them down, “they ought to be studied”.17 Despite, the change of focus in the new Treasure Act there is still a lack of emphasis on treasures in which are not made up of precious metals, therefore failing to meet the requirements of the act. McMillan also commented that he had expected the new Treasure Act to decrease the importance of the precious metal requirement, in which the law fell adequate to include. Therefore, rendering artefacts which essentially are treasures to be discarded and left to the public, thus devaluing the historical and cultural importance. With the current Treasure Act, a person who finds an object in which he believes could be treasure has a duty to notify the local coroner before the end of the notice period (14 days) and as previously mentioned could face a fine (£5,000) or imprisonment (up to 3 Months),18 with this placed duty it encourages the public to report finds and helps to ensure that any objects which may potentially be treasure are reviewed before ownership is determined. Another strategy in which the Act uses to encourage the public to report any findings is through the use of rewards, both finders and landowners are sometime eligible to a payment 14

Palmer, "Treasure trove and the protection of antiquities" (1981) 44 M.L.R. 178, 183. [1995] 4 All ER 756 (CA) 16 MacMillan, "Finders Keepers, Losers Weepers — Nut who are the Losers?" [1995] 58 M.L.R. 101, 102. 17 Hill, Treasure Trove in Law and Practice (1936). 18 Heyworth, "Treasure and responsible detecting" (2010) 111(Mar/Apr) British Archaeology 64. 15

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through the act if they have given in any object which is then labelled as treasure, this is left to the discretion of the secretary of state. This is similar to how finders or more specifically landowners who have found natural resources in their land can receive an ex gratia payment for their findings from the state, as allnatural resources belong to the Crown19 exclusively. Despite the change of the law, Treasure act has been criticised for encouraging discoveries that are for either monetary or personal gain. The British Council or Archaeology20 have criticised the acts use of terminology such as ‘treasure’ or ‘rewards’ as they fear the image of such words may cause an increase in finds and demands of an equal payment for such objects in which would not benefit the state as the rewards are paid through public funds, perhaps the next step for the law would be to move from a monetary view of findings to a much more broader spectrum, in which would allow the inclusivity of archaeological objects and also suggested by Mike Heyworth, Director of the Council of Archelogy, a cap on the amount that can be given as rewards. The law on lost objects and things found on land is not clear or methodical, as it gives landowners an unfair degree of power over object found on their land, if they had exercised any intention to control objects that are lost or abandoned. Furthermore, the lack of clarity over things that are found on land that were previously covered by land has also raised difficult questions, in which could only be answered by a refinement in the law. Likewise the law on things found in land has many limitations, the apparent success of the law on treasure is due to the failure of the treasure trove as it reduced the importance of objects which held great historical and cultural importance rather than monetary value, in which some critics may argue is still prevalent within the Treasure Act 1996.

Bibliography

Cases 19

Petroleum Act 1998 ss1(a), 2(1). Department of Culture, Media and Sport, "Matters of Principle", Consultation on the Treasure Act Review 2001 Comments from the Portable Antiquities Working Group of the Council for British Archaeology to the Department of Culture, Media and Sport (February 2001), para.2, p.1. 20

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Attorney General of the Duchy of Lancaster v GE Overton (Farms) Ltd [1981] Ch. 333; [1980] 3 All E.R. 503 Ch D. Bridges v Hawkesworth, (1851) 15 Jur. 1079; (1851) 21 L.J.Q.B. 75 Ct of QB. Costello v Chief Constable of Derbyshire Constabulary [2001] EWCA Civ 381. Elwes v Brigg Gas Co (1886) 33 Ch. D. 562Hibbert v. McKiernan [1948] 2 KB 142. Hibbert v McKiernan [1948] 2 KB 142. Moffat v Kazana [1969] 2 Q.B. 152. Parker v British Airways Board, [1982] 2 QB 1004. Waverley Borough Council v Fletcher [1996] Q.B. 334.

Legislation Law of Property Act 1925 Petroleum Act 1998 Treasure Act 1996

Other Sources

Blackstone, Commentaries on the Laws of England 1765-1769, (1979). Department of Culture, Media and Sport, "Matters of Principle", Consultation on the Treasure Act Review 2001 Comments from the Portable Antiquities Working Group of the Council for British Archaeology to the Department of Culture, Media and Sport (February 2001) Heyworth, "Treasure and responsible detecting" (2010) 111(Mar/Apr) British Archaeology 64. Hill, Treasure Trove in Law and Practice (1936). Judith Bray, ‘The law on treasure from a land lawyer’s perspective’ [2013] Conv 4: 265-279 MacMillan, "Finders Keepers, Losers Weepers — Nut who are the Losers?" [1995] 58 M.L.R. 101, 102. Mark Thompson and Martin George, Modern Land Law, (Oxford: Oxford University Press, 2017) p 13-18. Palmer, "Treasure trove and the protection of antiquities" (1981) 44 M.L.R. 178, 183. Petroleum Act 1998 ss1(a), 2(1). S. Panesar, "Theories of Private Property in Modern Property Law" [2000] Denning L.J. 113, 120.

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