Rights & Finding Flashcards
Right to Property
Is the Right to Property positve or negative and which provision of the ECHR and BnhE deal with it?
The right to property is conceived negatively: a right not to have property unjustly interfered with by the State,
not a right to have the State facilitate you in the acquisition of private property.
Constitutional and ECHR Rights
Art 43: Man has a natural right, antecedent to positive law, to the private ownership of external goods
Art 40.3: By its laws to protect from unjust attack and vindicate the property rights of every citizen.
The ECHR and our ECHR Act 2003 protects the right to possessions in Art 1 Protocol One including private property but most importantly it does not absolutely prohibit interference by the State in certain
instances where it would be lawful in order to pursue a legitimate aim using proportionality.
Ownership
What is Ownership?
To own something is to control it. Possession is the use and enjoyment of property.
Possession is an incident of ownership: landowner has right to possess land but not required to possess it
Land - Attachments
Leigh v Taylor [1902]
- Valuable tapestries attached to walls and belonged to tenant for life. Died. Part of land? Two issues:
(i) What was the extent of the attachment?
(ii) What was the intention of the person who attached the things? - Held not attachments i.e. they could be removed w/o doing any damage to the property
Land - Attachment
Botham v TSB Bank [1996]
Kitchen cabinets fixtures. Washing machines, cookers, etc. not fixtures
Things Above and Below the Land
Traditionally thought that the maxim ‘ownership is up to the heavens and down to hell’ was accurate, but case law has established that?
(i) One has rights in relation to a reasonable amount of airspace above your land but not up to heaven
(ii) One has ownership rights of that which is below the surface apart from treasure trove or natural
resources vested in the state by virtue of Art 10 of the Constitution
Things Found Above the Surface
Rule: The finder has the second-best title to the item and the owner has the best title to the item, why?
This is because when an item is found on the surface, it’s unlikely the owner of the land will be
able to show both possession and an intention to possess to give him better title than the finder.
Things Found Above the Surface
Armory v Delamirie [1722]
- Boy chimney sweep found jewel during work. Took it to jeweller. Jeweller took it and refused to pay.
- Boy sued. Jeweller claimed he wasn’t obliged to return it as the boy wasn’t the true owner.
- Held as bw the jeweller and the boy, the boy had better title. Only the actual owner could defeat him.
- NB: A finder does not acquire absolute title but merely a stronger one than anyone but the true owner.
Things Found Above the Surface
Hanna v Peel [1945]
- P was owner of house he’d never occupied. House was requisitioned to soldiers during war.
- Soldier found a brooch in window crevice. True owner unknown. No evidence P knew it was there.
- Police gave it back to P. H claimed he was entitled. Court held he was entitled to (unless true owner..)
Things Found Above the Surface
Parker v British Airways [1982]
- P found gold bracelet on floor of BA lounge in Heathrow. He gave it to a BA rep w his name and address and said if it wasn’t claimed by the true owner, they should return it to him.
- Owner never came so BA sold it and kept the £800. P sued. Held he was entitled to recover the £800
- Held (1) if a finder is lawfully on land and finds an item that’s not attached to or buried under it and takes it into control, he has title better than all but the true owner but (2) if the finder has a dishonest intention
- i.e. a trespasser, then the owner/occupier of the land has better title (but true owner has best)
Things Found Above the Surface
Webb v Ireland [1988]
IESC approved Parker
Things Found Above the Surface - Australia
National Crime Authority v Flack [1998]
- $433k found in F’s house by cops investigating her son. Unaware of cash. No one charged. Sued N.
- Held a person w exclusive possession over a private home is presumed to exercise control over all in it
Things Found Above the Surface - New Zealand
Tamworth Industries v AG [1991]
But New Zealand follows the UK:
- Held an occupier failed to discharge the burden of proving intention to exercise control over lost prop.
Things Found Below The Surface
What is the rule?
Rule: They belong to the owner of the freehold, in the absence of the original owner, even if the owner of
the freehold isn’t aware that they are there.
Things Found Below The Surface
Elwes v Brigg [1886]
- Land was leased to a gas co who were excavating on it. They found a prehistoric boat 6ft below surface. Held it was the lessor’s even though he was unaware of it at time lease granted.
- This was indirectly recognised in Ireland when the Dublin Port Tunnel was built.
- Qualifications to this principle incl. natural resources vested in the state (art 10) and treasure trove.
Things Found Below The Surface
Waverly Borough Council v Fletcher [1995]
- F went to Farnham Park (owned by WBC) to use his metal detector. Park was open to public for leisure + recreational use. F was a lawful visitor to the park. Found medieval gold brooch 9 inches below ground.
- Inquiry set up to determine if it was treasure trove. Turns out it wasn’t. Returned it to Mr F.
- WBC sued claiming ownership: Held it belonged to WBC as owners of the land in which it was found.
