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Discuss the ownership of discovered items or treasure and paintings or graffiti on buildings.
Example Land Law Problem Question
Jack a businessman, rents an office with a long lease. The lease defines the Demise to include the exterior walls and structure, and it also contains a repairing covenant.
One day Jack arrives at work to find a picture painted on his exterior wall. Later Jill arrives, who works with Jack, notices the picture and says, ‘that’s a Hanksy, could be worth some cash.’ Jack immediately phones Tom, an art dealer, who confirms Jill’s suspicion. Later that day Tom phones to tell Jack he has a buyer. Tom removes the section of the wall with the picture and ships to the buyer, who promises to pay Tom £10,000 on delivery.
While Tom was removing the picture he tripped on a mound of dirt by the wall. On uncovering it he discovered an old wooden spoon that looked identical to the spoon in the news, which had just been donated to the museum, as a priceless antiquity.
Using case law and the lease explain if Tom could be the owner of the painting and or, the spoon?
Although the issues that arise in respect of the painting and the spoon require different explanations, they are all related to the notion of ownership of items that are found. In other words, does any other individual possess greater title to the painting or the spoon than Tom? In order to consider this point, it will be necessary, despite the links that exist, to consider the items in turn.
The issues in respect of the painting are rather complicated in a number of respects. The first consideration in this respect relates, in the normal way, to ownership of the wall upon which the painting was painted. Once this point is settled an issue arises as to whether the painting can actually, under the terms of the lease be removed from the property. Finally, it will be necessary to consider, even if the painting can be removed, whether Tom would be entitled to sell it. In considering this final point, it must be assumed that Tom has Jack’s permission to remove and sell the painting and therefore the real issue is whether Jack has sufficient title in it to give such permission.
The general position
The general position is that the owner of land is entitled to anything on it ‘up to the sky and down to the centre of the earth’.1 Unfortunately for Tom, a lease does not make Jack owner of the land and simply provides him with exclusive possession of it.2 The result of this, it seems irrespective of the term of the lease, is that the land and everything attached to it remains the property of the landlord.3 Here however, the matter is less clear cut. This is because the painting, whilst being attached to the wall, does not, in an ordinary sense form part of the wall. Once again however, this approach does not assist Tom. On this occasion, the issue is that all chattels found on the land of the landlord belong to the landlord.4 It seems in this context therefore, that the only way in which Tom will be able to assert any title in the painting sufficient to allow him to sell it is if it is deemed to fall within the type of object that the parties could be found to have impliedly considered to have belonged to Jack, or at least that Jack could assert the right to remove.5 It does not appear very likely that the painting would fall within this category.
The effect of the repairing covenant
The repairing covenant within Jack’s lease creates a very interesting situation in this circumstance. In order to consider this, the true nature of the painting must be considered. Irrespective of its artistic value, the painting is painted on property belonging, under the position set out above, the landlord. Where an individual damages property that belongs to another, they cause criminal damage to it.6 This point is also relevant to whether Hanksy will retain any title in the property discussed below, but for these purposes the point is that damage to the property is likely to trigger the repairing covenant in Jack’s lease. The result of this being that Jack could be considered to have no choice but to take steps to have the painting removed and, in doing so, repair the property.
If the above assertion is found to be correct, it seems that the repairing covenant, when acted upon allows Jack to have the painting removed from the property. It does not seem however that it would then allow him to sell the painting. If the same reasoning as in Elwes v Briggs Gas Company is applied here, it seems reasonable to suggest that the covenant in the lease would only extend to allow Jack to sell items that could reasonably be contemplated as those that he could remove under the covenant. Conversely, it could equally be suggested that if, for example, Jack removed and replaced a broken window from the property, it would be odd if he was prevented from selling the broken window. To make such a suggestion would suggest that he was prevented from disposing of it by throwing it away without the landlord’s permission. Whilst the position is unclear here, it seems probable that the landlord would retain sufficient interest in the property to prevent the painting being sold despite the repairing covenant. In other words, the covenant is such that it prevents the landlord complaining that the painting has been removed, but is insufficient to cause Jack to hold greater title to it than the landlord.7
Who owns the painting?
So far in this discussion it has been found that it is unlikely that Jack could assert ownership of the painting and therefore that Tom could not sell it. Despite the fact that all of this is based on the notion that Jack’s landlord has stronger title to the painting than Jack, the issue of whether this title is the strongest has not been addressed.
The starting point for this consideration is that, in ordinary circumstances, nobody has a stronger interest in property than the true owner of it.8 The true owner in this context would be Hanksy and therefore, on this basis, when the painting was painted on the property the owner of the property took possession of it and became what is known as a bailee.9 As such, the landlord had a duty to retain and take reasonable care of the painting until such time as the real owner can be found or makes a claim for the property.10 The issue in this context is whether Hanksy is the real owner of the painting.
The issue is twofold. The first question relates to whether Hanksy will be deemed to have abandoned the painting. In other words, if the position is such that he was aware that he could never recover the painting he will have revoked his interest in it. Whilst this does not appear to be any direct authority for what is required in order for the painting to have been abandoned it appears that where an individual illegally removes things from land, their title is less than that of a landowner11 and therefore, by analogy, it could be suggested that illegally placing something on property might have the effect of revoking title to it. A further analogy could be drawn with the law on theft, where property does not belong to another if it has been abandoned.12 Indeed, even if Hanksy attempts to assert that the painting has not been abandoned, it is difficult to see the nature of any right he could assert over it. He cannot claim title to the wall because this belongs to the landlord and would therefore be left with a claim to an interest in the paint or perhaps an attempt to assert some kind of moral right over the art.13
The final point is clearly outside the scope of any discussion here and in any event is unlikely to be a relevant consideration. This is because Hanksy is unlikely to bring any claim against the painting. Firstly, because he may wish to remain anonymous14 and secondly, will also, as mentioned, be liable in criminal damage if he comes forward. The result of this is that the strongest title to the painting lies with Jack’s landlord and Tom cannot sell the painting without the landlord’s permission.
The position in respect of the spoon is slightly less complicated than that in respect of the painting in that the notion of ownership is more clearly set out. Where, as mentioned above, an item is found attached to land, it becomes the property of the landowner ahead of that of the party who finds it.15 There are two exceptions to this position however.
The first of these arises where an item is only lightly covered by the soil. It seems that in this circumstance a presumption is made that the item has only been lost recently and that true owner is likely to attempt to recover it. In this circumstance the finder’s interest take precedence over the landowner’s.16 The reasoning behind this distinction appears to be on the basis that where items have not been recently lost, the law looks for a new owner, that being the landowner. Where however they are recently lost, the title in the finder is only a notional one because the true owner will recover the lost item.
In this circumstance, if the spoon appears to have been recently lost, its true owner will come forward and retake possession of it. It seems reasonable to suggest that this situation is unlikely to occur in this circumstance and therefore the title to the spoon, because the true owner cannot be found, will lie with the landowner. It is not clear from the facts whether this is Jack’s landlord, but this does appear probable.
On the basis of the above, it is extremely unlikely that Tom would be the owner of the spoon, but this is not the end of the matter in respect of how the spoon must be dealt with. The question in this context, given the nature of the spoon that Tom believes is identical to the one he found, is whether the spoon will be considered treasures.
In a general sense any object that is at least three hundred years old and is either an object that is made up of ten per cent precious metal, is two coins of at least that age and with the same minimum percentage of precious metal or is a group of ten coins of the same age.17 It is clear that a wooden spoon could not fall within this description. However, where an object is at least two hundred years old and the Secretary of State designates it as an object of outstanding historical, archaeological or cultural importance, the object will fall within the definition of treasure irrespective of whether it contains any amount of precious metal.18 Whilst it is impossible to state with absolute certainty that a priceless antiquity is such because of its outstanding historical, archaeological or cultural importance, it seems reasonable to suggest that it may be.
When an individual discovers an item that they believe may be treasure, they must report their find to the coroner in the area where the find was made within fourteen days of making it.19 Otherwise the finder will be guilty of an offence.20 It is clear that Tom believes the spoon to be the same as the one that he has seen in the news and therefore he must report his find. Once the find is reported, title to the spoon will vest in the Crown.21
It is interesting in this context that Tom may be better off if the spoon is found to be treasure than if it is just considered a valuable item. If it is the latter, as mentioned, the Crown will disclaim title to it22 and title will revert to the landowner. If the spoon is considered to be treasure, the Secretary of State is able to decide whether it ought to be placed in a museum and whether the museum ought to pay a reward.23 The important point for Tom in this circumstance, is that where a chance find of treasure is made by a person who is not looking for it, but has permission to be on the land where the treasure is found, the Secretary of State has a discretion to divide any reward between the landowner and the party who finds the treasure.24 The result of this is that Tom may be entitled to some payment for his find.
It seems clear that Tom will not be the owner of either the painting or the spoon. It is clearly obvious from the facts that Tom was never intended to take ownership of the painting because he was selling it for Jack. However, it seems unlikely that Tom will even be entitled to sell the painting because it was not painted on property belonging to Jack and will therefore, irrespective of the repairing covenant, belong to Jack’s landlord. It also seems likely that the spoon will theoretically be Jack’s landlord’s property, but here its status as treasure may mean that Tom could be entitled to a share of any reward that is paid in respect of its discovery.
Elwes v Brigg Gas Company (1886) 33 Ch D 562
Hibbert v McKiernan 1948 2 KB 142
KH Enterprise v Pioneer Container, The Pioneer Container 1994 2 AC 324
Mitchell v Moseley 1914 1 Ch 438
Moffatt v Kazana 1969 2 QB 152
Morris v CW Martin & Sons Ltd 1966 1 QB 716
Parker v British Airways Board 1982 QB 1004
R v Small (1988) 86 Cr App R 170
South Staffordshire Water Co v Sharman 1896 2 QB 44
Street v Mountford 1985 AC 809
Waverley BC v Fletcher 1996 QB 334
Copyright, Designs and Patents Act 1988
Criminal Damage Act 1971
Treasure Act 1996
Codes of Practice
Department for Culture, Media and Sport Treasure Act 1996: Code of Practice (2nd Revision)
Other sources considered but not cited directly
Dixon, M Modern Land Law (7th edn Routledge 2010)
Harpum, C, Bridge, S & Dixon, M Megarry & Wade The Law of Real Property (8th edn Sweet & Maxwell 2012)
McFarlane B, Hopkins, N Nield, S Land Law Text, Cases, and Materials (2nd edn Oxford University Press 2009)
Smith, R Property Law: Cases and Materials (5th edn Longman 2012)
1 Cujus est solum, ejus est usque ad coelum et ad inferos (see Mitchell v Moseley 1914 1 Ch 438)
2 Street v Mountford 1985 AC 809
3 Op cit at n 1
4 South Staffordshire Water Co v Sharman 1896 2 QB 44
5 Elwes v Brigg Gas Company (1886) 33 Ch D 562
6 Criminal Damage Act 1971, s 1
7 See Parker v British Airways Board 1982 QB 1004
8 Moffatt v Kazana 1969 2 QB 152
9 KH Enterprise v Pioneer Container, The Pioneer Container 1994 2 AC 324
10 Morris v CW Martin & Sons Ltd 1966 1 QB 716
11 Hibbert v McKiernan 1948 2 KB 142
12 See R v Small (1988) 86 Cr App R 170
13 Copyright, Designs and Patents Act 1988, s 94
14 This is on the basis that the fictional Hanksy is based on the real Banksy
15 Op cit at n 7
16 Waverley BC v Fletcher 1996 QB 334
17 Treasure Act 1996, s 1(1)(a)
18 Treasure Act 1996, s 1(1)(b) & 2(1)
19 Treasure Act 1996, s 8
21 Treasure Act 1986, s 4
22 Treasure Act 1986, s 6
23 Treasure Act 1986, s 10
24 Department for Culture, Media and Sport Treasure Act 1996: Code of Practice (2nd Revision), paragraph 82
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