Property law

I was on “The Last Word”, yesterday discussing Lotto tickets. This led to a reference to the passing of ownership of property to the finder of lost property.

I cited a year and a half as the period of time required to elapse before that transfer or vesting could take place. I meant to say “… a year and a day”.

As I write I have not found the source of that (recollected) period, but I am impressed by the discussion of this in Wikepedia, HERE.

It has this neat citation: “A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except the true owner, and is entitled to keep abandoned property”.

You have it all there, except the definitions of “mislaid” “lost” and “abandoned”, and for that you will need a lawyer.

Solicitors may or may not be from Hell, but there will be occasions when, to Hell they must go.

We see this in Star Energy Weald Basin Ltd & Anor v Bocardo SA [2010] UKSC 35 (28 July 2010)

The appellant, had drilled an oil well sideways under the respondent’s land. It had been found, at first instance, that this was a trespass.

The Supreme Court remarked;

“It has been observed that anything that is drilled below a depth of about 8.7 miles or 14 kilometres would be crushed by the earth’s pressure of 50,000 pounds per square inch and vaporised by a temperature of 1,000 degrees Fahrenheit:…”

This, the Court found, was no bar to the correctness of the finding that drilling 3 wells at respective depths of 2,900, 2,800 and 950 feet below the respondent’s land was a trespass.

Receivers of stolen property do not pay full value for the property. A receiver is a person who buys the property from the thief or someone deriving, consciously, possession from the thief. Anyone in possession after the theft derives possession from the thief, whether they know it or not. The knowledge of the person decides the point as to whether they are a receiver or an innocent person in possession. (That knowledge can be inferred; if the property is bought for a considerable discount on its true value there is an implication that the purchaser knows the goods are stolen. To be suspicious is to know, for these purposes).

In the world of commerce, possession alone is insufficient to transact business; title or ownership is indispensable. (There are very rare exceptions).

Consequently, purchasers of stolen property are at risk of losing the money they pay for the property. We see this in Mallett & Son [Antiques] Ltd -v- Rogers [2005] IEHC 131.

The Plaintiff purchased a piece of furniture from the Defendant. It was an antique piece and of very high value. It had been stolen ten years previously. When the property was located by its true owner as the Plaintiff put it up for sale in London it was returned to the owner and the Plaintiff claimed for its loss against the Defendant.

Amusingly, as recorded by the judge,

“The defendant claims that the plaintiff was guilty of negligence and breach of the duty of care which it owed inter alia to the defendant, by failing to take any or any reasonable steps to carry out appropriate checks on the authenticity of the bookcase (notwithstanding considerable experience and expertise in the buying, selling and restoration of antique furniture).
The defendant claims that if the plaintiff had exercised reasonable care it would have discovered that the bookcase had in fact been stolen and was the property of Lord Roden and would have to be returned to him.”

This was an absurd proposition. On the facts, the Defendant was in the antiques business himself. As a practical matter he was in at least as good a position, as the Plaintiff, to make inquiries.

More importantly, the issue is dealt with in the Sale of Goods Act 1893 (as amended). Section 12 reads:

“(1) In every contract of sale, other than one to which subs. (2) applies, there is
(a) an implied condition on the part of the seller that, in the case of a sale, he has a right to sell the goods and, in the case of an agreement to sell, he will have a right to sell the goods at a time when the property is to pass,
(b) an implied warranty that the goods are free, and will remain free until the time when the property is to pass, of any charge or encumbrance not disclosed by the buyer before the contract is made and that the buyer will enjoy quite possession of the goods except insofar as it may be disturbed by the owner or other person entitled to the benefit of any charge or encumbrance so disclosed.”

The contract between the parties was governed by the terms of the 1893 Act and the Defendant was in breach of the contract. That breach resulted in a claim for £111,533 and judgment in that amount.

Occasionally this blog contains a misspelling. I have, for instance, misspelled “Brian Cowen” as “Brian Cowan”.

Nobody was misled; indeed, I was corrected by a reader.

There is, however, a human type that is radically intolerant of the mistakes of others. Alternatively, that type is inflexible in thought. Alternatively, these are human traits which some people have and others do not; and some people have both traits.

The result is that when a solicitor composes a letter for his/her client and writes;

Pursuant to Clause 7(13) of the Lease we as Tenant hereby give notice to you to determine the lease on 12 January 1995. . .”

the solicitor is fixed (not any more) with the serious consequences of failing to exercise a break clause for the Tenant.

If the solicitor had written:

Pursuant to Clause 7(13) of the Lease we as Tenant hereby give notice to you to determine the lease on the third anniversary thereof. . .”

there would have been no error. The third anniversary of the lease in question fell on 13th January 1995 and not 12th January 1995.

This was the issue in Mannai Investment Co Ltd v. Eagle Star Assurance [1997] UKHL

Lord Hoffman referred to Mrs. Malaprop’s line (in the play “The Rivals) “She is as obstinate as an allegory on the banks of the Nile”, to explain why the law should change on the interpretation of such notices. Most people understand what Mrs. Malaprop says; indeed they also understand that her mistake is a joke and is intended by the playwright (Richard Brinsley Sheridan). (For the sake of the joke, the playwright conflated crocodiles with alligators, there being no alligators on the banks of the Nile).

The judge went on to say;

Mrs. Malaprop’s problem was an imperfect understanding of the conventional meanings of English words. But the reason for the mistake does not really matter. We use the same process of adjustment when people have made mistakes about names or descriptions or days or times because they have forgotten or become mixed up. If one meets an acquaintance and he says “And how is Mary?” it may be obvious that he is referring to one’s wife, even if she is in fact called Jane. One may even, to avoid embarrassment, answer “Very well, thank you” without drawing attention to his mistake. The message has been unambiguously received and understood.”

Lord Hoffman, with the majority, allowed the Tenant’s appeal.

The mistake of the Tenant or its agent was to fail to calculate when the third anniversary fell. Indeed, as a practical matter the mistake was to calculate it at all, as can be seen from the suggested form of the notice shown above.

As Lord Hoffman pointed out, nobody was misled.

I worry I have been sleeping on my rights.

It has been the practice of art galleries in Ireland to keep the very identity of purchasers secret from the artists that the gallery “represents”.

Now as a consequence of Directive 2001/84EC and The European Communities (Artist’s Resale Right) Regulations (SI 312 of 2006), we artists are entitled to information from the gallery which will enable us to enforce our claims for a percentage of any money generated on a resale of our work.

I must urgently write to my gallery for the names and addresses of my buyers.

(For reasons currently unknown to me I am unable to link to SI 312 of 2006 because Statutory Instruments for 2006 are missing from the website of the Attorney General and BAILII).

NOTE for naive artists; terms and conditions apply

The theft of the remains of a human heart in Argentina is reported.

If the event had happened in Britain or Ireland it might raise some thorny questions of law.
In Ireland the ostensible relevant offence would be Section 4 of the Criminal Justice (Theft and Fraud) Act 2001, which provides:

4. —(1) Subject to section 5 , a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.

The Act defines property:

“property�? means money and all other property, real or personal, including things in action and other intangible property;

At common law there is not, and never was, a property in a human body. In the UK it is possible, apparently for property to subsist in part of a human body that being, allegedly, a consequence of the provisions of Section 4 of the Theft Act 1968 in the UK, on the grounds set out in R v Kelly [1999] QB 621 where a judge stated:

To address the point as it was addressed before the trial judge and to which his certificate relates, in our judgment, parts of a corpse are capable of being property within section 4 of the Theft Act 1968 if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques for exhibition or teaching purposes, see Doodeward v Spence 6CLR 406, 413, 414 in the judgment of Griffith C.J. to which we have already referred and Dobson v North Tyneside Health Authority [1997] 1WLR 596, 601 where this proposition is not dissented from and appears in the judgment of this court to have been accepted by Peter Gibson LJ; otherwise, his analysis of the facts of Dobson’s case, which appears at that page in the judgment, would have been, as it seems to us, otiose.”

And also:

We accept that however questionable the historical origins of the principle, it has now been common law for 150 years at least that neither a corpse nor parts of corpse are in themselves and without more capable of being property protected by rights: see for example, Erle J, delivering the judgment of a powerful Court for Crown Cases Reserved in Reg. v Sharpe [1857] Dears. & B. 160, 163, where he said: “Our law recognises no property in a corpse, and the protection of the grave at common law as contradistinguished from ecclesiastic protection to consecrated ground depends on this form of indictment.” He was there referring to an indictment which charged not theft of a corpse but removal of a corpse from a grave.�?

In AB & Anor. v Leeds Teaching Hospital & Ors [2004] EWHC 644 (QB)
the court referred to Clerk & Lindsell on Torts 18th Edition and quoted it as follows:

Dead Bodies and Human Tissue

There is no property in a corpse. (However, personal representatives or other persons charged with the duty of burying a body have a right to its custody and possession in the interim, infringements of which are actionable, and by statute those representatives also have certain powers in relation to the use of a body for medical purposes.) On the other hand once a body has undergone a process or other application of human skill, such as stuffing or embalming, it can it seems be the subject of property in the ordinary way. And the same goes for body parts: thus in the grisly case of R v Kelly robbers who abstracted and sold preserved specimens from the Royal College of Surgeons’ collection were held rightly convicted of theft. It is an open question whether there can be property in bodies and body parts which have not been subject to any such process, but are legitimately wanted for some other purpose, such as accident investigation or use as an exhibit in court. … In so far as there can be property in corpses or parts thereof, presumably it will vest initially in person carrying out the stuffing or embalming process, or taking steps for their preservation, on the basis that he is the first possessor.”

The issues were adverted to by the Irish High Court in O’Connor & Anor v. Lenihan [2005] IEHC 176 (9 June 2005)

In facts not very dissimilar to those in AB v Leeds (see above) the Plaintiff claimed, inter alia, for Bailment, Conversion, Detinue and Trespass but as the judge remarked

The remaining claims are not being pursued by the plaintiffs and there is no need to address them in this judgment�?

Currently there is no reported case on Section 4 of the Criminal Justice (Theft and Fraud) Act 2001 as to whether the section extends to parts of a human corpse as, reportedly, Section 4 of the Theft Act 1968 does.

In AB & Anor. v Leeds Teaching Hospital & Ors [2004] EWHC 644 (QB) the judge stated:

But in the absence of such a cause of action in respect of the body of a deceased person being recognised by an English court I am not prepared to hold that one does exist.

Given the statement of the head of the monastery from which the heart was stolen, – “The theft was carried out because of the heart – nothing else was stolen,” – it would be very doubtful if the “theft�? would be chargeable in Ireland and, possibly, in Britain,

The Conveyancing Committee is comprised of working solicitor members (working in private practice) brought together by the Law Society of Ireland to give guidance, and set procedures, in the resolution of questions that may arise in conveyancing transactions. Conveyancing is what lawyers do when transferring or mortgaging land or buildings.

The members are unpaid for their work. They are, of necessity, deeply involved in conveyancing practice and, of course, earn their living from doing so. They tend not to belong to the category of solicitor who seeks election to the Council of the Law Society.

The Conveyancing Committee oversees the production of the various editions of the Law Society General Conditions of Sale. These form part (hopefully) of every conveyancing sale transaction.

It also oversees the production of the Law Society’s Requisitions on Title. These form an indispensable check-list of questions to be answered by the vendor or mortgagee in a conveyancing transaction.

The Conveyancing Committee is an important body; its work is known to the legal profession (and the judiciary) but unsung in public.

I have a soft spot for the Committee, having found no response to my assertion to colleagues that Professor Farrand cracked jokes in his book “Contract & Conveyance�?; dry jokes, admittedly.

It’s lonely, being a conveyancer.

The Richmond Hospital in North Brunswick St. has a new phase of life as a District Court building.

It’s a fine two story building of red brick and terracotta with two wings on either side of a fine staircase to the entrance.

Court 52 is clearly occupying what was once a hospital ward; broad and well lit, with gracious ceiling height in proportion to the size of the space.

The structure inspires confidence in its developers, the medical men (and women?) who brought it into being. There would have been no surgical swabs left unforgotten by those people in a patient after the scalpel wound was sewn up. They also believed in the germ theory of disease.

This sense of carefulness and planning can be seen in the title documents of the premises. I acted for a potential unsuccessful purchaser when it ceased to be a hospital and was offered for sale.

The Hospital trustees had been very careful over a long period of time and never failed to use the services of a good surveyor or cartographer. In addition they had been compelled to assemble the site painstakingly, each sliver of land (particularly on the road frontage) being carefully mapped and associated with its title deeds.

Again, thanks to the same people, it now helps to bring a civilized tone to what can be a stressful process (even for the lawyers).

Management companies in apartment complexes

1. There are good reasons for the existence of management companies in apartment complexes. The need exists for some legal entity to manage and control the “common areas�?, those portions of a development that are not part of any apartment. Normally each apartment owner has a share in the management company or is a member. These are usually companies limited by Guarantee. The management company will insure the apartment complex (including the apartments) and will ensure that cleaning and lighting is maintained. The plan of the scheme will be reflected in the conveyancing arrangements for the scheme. “Conveyancing�? is a reference to the land law and form of documents used in the scheme. It would be necessary to inspect the title documents to fully understand the conveyancing aspect of any particular scheme. The developer’s scheme of development will usually contemplate the transfer of the ownership of the common areas from the developer to the management company, on completion of the sale of the last apartment to be sold. Normally membership of the management company is limited to the apartment owners (after the sale of the last apartment). (Do not confuse the management company with the “manager�?. The “manager�? might be also a company, hired by the developer to provide management services). (more…)