Take a drive around the suburbs of any Australian city and you will usually come across things sitting on the footpath, commonly furniture or old household appliances. This seems increasingly to be the accepted way to dispose of unwanted articles in the home, and these usually disappear quite promptly; evidencing the old saying “One man’s trash is another man’s treasure”.
Who owns discarded property?
If you do see something that you would like to have on the side of the road, or somewhere else where it does not appear to be in the possession of anyone, can you take it? If you do, does it become yours?
The old children’s rhyme “Finders keepers, losers weepers” might apply, but the answer to these questions may not always be simple, particularly as it may be necessary to get inside the mind of the owner, or former owner, of the article1, and the mind of the finder, to determine their intentions in relation to the article.
Intention to abandon or appropriate
The law in Australia is not completely clear, but the main accepted view expressed is that the owner of an article can abandon or renounce ownership2 of the article by parting with possession (if held by the owner) and by forming an intention to abandon the article and ownership of it.
Someone who finds, or comes into possession of, an abandoned article may become the owner of the article by appropriating it; that is by taking or keeping possession of the article and by forming the intention to own it.
How is intention ascertained?
Usually, the intention of a person who appropriates an article will be clear, but it may be difficult to ascertain or infer the intention of an owner of an article who may, or may not, have had the intention to abandon the article (the “first owner”). Usually, the first owner will not be known if an article that is apparently lost or abandoned is found, and the first owner may not express any intention in relation to the article.
It is possible for the first owner to make an express declaration of intention to abandon an article in an agreement, or otherwise, but this is unusual.
If an article is found, the circumstances in which it is found may indicate the likelihood of an intention to abandon the article, or the opposite. Articles which are merely lost are not abandoned.
Size may matter
If you find something like an old lounge suite or a table on the side of the road or in a public space there is a fair chance that it is not there by accident but has been abandoned and left with the intention that anyone who wants it may have it (appropriate it).
On the other hand, if you find something small and valuable, such as a gold nugget found by a school girl in a railway station3 or a Pentax camera left on a fence4 it would seem unlikely that these have been abandoned.
The place of finding an article may also give an indication as to the likely intention of the first owner to abandon the article, or not. Something found at a public rubbish dump would normally be taken to be obviously abandoned and available for appropriation by a finder5. But even at the dump, finding something of real value may lead to doubt.
Finding a damaged dinghy in mangroves may not be circumstances in which it is reasonable to assume that the boat had been deliberately abandoned rather than that it had broken away from moorings6. The finder of a damaged motorcycle, with parts scattered, in scrub may lead to the belief by the finder that the bike had been abandoned7. However, whatever may be the belief of the finder of an article as to whether or not it has been abandoned, this does not mean that the first owner did have an intention to abandon the article.
Remedies and larceny
If an article is found and appropriated, what may be the consequences if it is not abandoned by the first owner?
If the first owner becomes aware of the appropriation, he or she may require the article to be returned, or may be able to obtain damages for its loss (either in conversion or detinue or for trespass to goods). This will certainly be the case where there is no reasonable cause for the person making the appropriation to believe that the article has been abandoned. If the first owner has acted in a way that induces the belief that the article has been abandoned, this may preclude recovery (but this has not been decided).
The appropriation of an article that is found can also constitute larceny by finding. This is the case even if the first owner of the article is not known, as in the examples of the gold nugget and the camera. However, intention is a necessary ingredient of the offense of larceny by finding, and unless the finder is proven not to have had a genuine belief that the article had been abandoned and may be appropriated, the offense of larceny by finding is not committed.
The old expressions “finders keepers” and “possession is 9 points of the law” (sometimes expressed as “possession is 9/10ths of the law”) suggest that a finder in possession of an article may keep it. However, a first owner, as noted above, may be able to recover the article, or obtain damages for its loss, but it will be necessary for the first owner to prove ownership, and that the article was not in fact abandoned.
Until such time as the first owner of a found article appears to assert a claim to the article, a finder who has possession of the article may use it, but may run the risk of potential liability for loss or damage, or of prosecution for larceny if there is no reasonable cause to believe the article has been abandoned.
Police control of found property
In South Australia the Police Regulations 2014 made under the Police Act 1998 make provision for “found property”; that is “any personal property that has been lost and whose owner is unknown at the time at which it is found”.
If found property is delivered to the SA Police, the finder may make a claim to the property within 42 days from the day on which it is delivered to SA Police. The police must retain custody of the found property for at least two months, but may then return the found property to the finder.
Regulation 75(2)(a) provides expressly that the finder:
“…does not obtain title to the property as against the owner or the person who lost the property until the end of 5 years from the day on which the property was returned to the finder by SA Police”.
The Regulation goes on to say that the finder is taken to have agreed to return the property, or to pay its value if it is no longer in possession, to a person who “claims the property” and who proves that claim to the satisfaction of the Commissioner within the 5 year period. The finder is also required to indemnify the police in respect of any claim made against them as a result of the return of the property to the finder.
The Regulations do not expressly provide that title to found property will pass to a finder at the end of the 5 year period, but this does seem to be the inference in Regulation 75(2)(a). The reason for the 5 year period is not apparent. Apart from the Regulations, a first owner may not be able to maintain an action for the torts of detinue or conversion or trespass after 6 years under the Limitation of Actions Act 1936.
So, there are potential risks if you retain an article that you find. In the case of larger items of furniture or appliances etc. any risk may be minimal, but it may depend on the circumstances in which these are found. Smaller valuable items, however, will usually not be abandoned by their owner and the safest course would seem to be to deliver these to the police, and to make a claim on the articles if these are not claimed by the first owner. If the first owner does not make a claim then, hopefully, finders may be keepers.
1The expression “article” is used to refer to tangible, moveable personal property or chattels; things that it is possible to have actual physical possession of.
2 “Ownership” is used to mean title or property in an article. This may equate to a right to possession of the article.
3 Keene v Carter BC9401870, Supreme Court of Western Australia.
4 R v MacDonald (1983) 1 NSWLR 729.
5 AL Hamblin Equipment Pty Ltd v Commissioner of Taxation (1974) 131 CLR 570, Jacobs J.
6 Feist v Bonython  SASR 176.
7 Donoghue v Coombe (1987) 45 SASR 330.
This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this report, or what it means for you, your business or your clients' businesses, please feel free to contact us.