“Finders-keepers, losers-weepers?” – navigating the law on abandonment

Having completed the purchase of a property, entered your new home and discovered various items left behind by the seller, it would be easy to assume that you are free to dispose of these goods as you see fit. Indeed, you might quite reasonably interpret the seller’s failure to extract the items as evidence that they no longer own them, and that you now do. However, the legal position is not always that simple…

Have the goods have been abandoned?

Abandonment constitutes the relinquishment of both ownership and possession.

In the case of Robot Arenas v Waterfield [2010] EWHC 115 (QB), the Defendant purchased a hangar containing a set of television series called “Robot Wars”, which belonged to the Claimant. The Defendant informed the seller’s agent that there were goods left in the hangar, but proceeded to scrap the goods when there was no response.

The Defendant argued that the Claimant had abandoned the goods, as this would offer a defence to the claim of wrongful destruction. The test for abandonment, as adopted in this case, is whether there has been both an intention to abandon and some physical act of relinquishment.

Both elements require unpicking. The term “physical relinquishment” seems to imply the need for a positive act, such as throwing the goods into a skip or physically handing them to another person, yet in Robot Arenas, where the case turned on intention, it seemed sufficient for the goods to simply be left where they were by the Claimant. In other words, doing nothing may be enough.

But whereas a positive act may establish physical relinquishment, it does not necessarily show intention. To prove this, it must be demonstrated that the owner possessed the necessary subjective intent to abandon. This subjective element will inherently cause any assessment of intent to turn on a case by case basis, but it is worth noting that, in Robot Arenas, the Claimant was held to not have abandoned the goods on the basis that he:

1. Believed had taken all of his equipment with him; and
2. Expressed an interest in recovering the objects, despite the building being left unlocked.

It might therefore follow that where a seller or tenant leaves objects behind but demonstrates an intention to retain ownership, whether through actions, correspondence or other means, abandonment will be difficult to establish.

What should you do with goods left behind?

Let us assume that the goods have indeed been abandoned – what next? Given that abandonment constitutes the relinquishment of both possession and ownership, the goods would become subject to a “finders-keepers” scenario, whereby anyone who discovers them may dispose of them as they see fit.

However, where it seems abandonment has not occurred, it is arguable that the possessor would become an “involuntary bailee” of the goods. In essence, this is where goods come into your possession without your consent. Case law imposes a duty on the involuntary bailee to do what is “right and reasonable” which, if breached, offers the owner a route to recourse via damages.

When disposing of the goods, what is considered “right and reasonable” will turn on the facts of each case, but one should have regard to the value of the goods and the expressed intention of the owner. For instance, whereas it might be reasonable to discard perishable or low-value goods, the same might not be said for a piece of fine art.

A useful starting point is to check the lease/sale contract, which may prescribe certain procedural steps for a buyer to follow prior to disposing of the goods. In most cases this will protect the possessor. However, where a contractual provision permitting disposal is at odds with the stated intention of the owner to retain the goods, particularly in relation to high-value or sentimental goods, any seller should seek specialist legal advice before disposing of any items.

Alternatively, and in the absence of any contractual provision, the Torts (Interference with Goods) Act 1977 (“the TIGA”) will generally come into play. This allows the individual in possession to both (i) issue a notice requiring the owner to collect the goods, and (ii) issue a notice of intention to sell the goods if they are not collected. Any possessor should pay close attention to the notice requirements and this is a useful tool for (i) demonstrating compliance with the “right and reasonable” duty, thus justifying disposal, and (ii) establishing abandonment where the notice is ignored.

Practical Tips

In light of the above, here are some practical tips for property buyers and owners:

1. Assess the worth of the goods and obtain valuations where appropriate;
2. Obtain advice on checking the relevant sale contract, but consider it alongside the value of the goods and any relevant communications;
3. Make contact with the owner to understand whether or not they want to/intend to keep the goods, and retain evidence of any such communications;
4. Grant the seller access to the property to allow collection, but oversee this process to ensure the correct goods are removed;
5. Prepare an agreement for the parties to sign, confirming all agreed goods have been removed;
6. Should you fail to make contact, consider serving a notice in accordance with the TIGA 1977 (if applicable), to protect your position;
7. Seek specialist legal advice when unsure how to proceed, particularly in relation to high-value possessions.

Should you need any advice in relation to the contents of this article, or indeed any property related dispute, please do not hesitate to contact partner Shams Rahman of our Property & Trusts Litigation team.

 

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