Acquiring Title by Theft

Published date01 July 2002
Date01 July 2002
Acquiring Title by Theft
Graham Battersby*
It is, of course, well established in English law that a person who wrongfully
acquires possession of an item of physical property, whether land or a chattel,
acquires a title which is good against all but a person who can prove a better title.1
However, until the decision of the Court of Appeal in Costello vChief Constable of
Derbyshire Constabulary,2it was uncertain whether that general proposition
applied to a person who acquired possession by theft (or by other criminal means).
It need hardly be said that a thief is a most unmeritorious claimant, and it was not
difficult to find statements denying, or doubting, that a thief would acquire a
defensible title. For example, Professor Michael Bridge, writing in 1993,3stated:
‘It is predictable, however, that a court will invoke public policy to reject the
[possessor’s] claim where the . .. claim is manifestly based upon a criminal taking.’
There are also some relevant dicta in Parker vBritish Airways Board,4the
leading modern case on the acquisition of title by finding. The claimant, Mr.
Parker, had a ticket entitling him to be in the executive lounge at Heathrow
Airport, which was operated by British Airways Board. He found a gold bracelet
on the floor of the lounge. He handed the bracelet to an employee of the Board,
saying that he wished the bracelet to be returned to him if the true owner was not
found. The Board sold the bracelet for £850. Parker sued, claiming that by finding
the bracelet he had acquired a title superior to that of the Board. His claim was
successful, because on the facts the Board did not have prior possession of the
bracelet; he was awarded £850 plus interest. The reason why the Board’s defence
failed was that, being the operators of the executive lounge to which the public had
limited rights of access, the Board had not manifested an intention to exercise
control over those premises and things that might be found on those premises.
Parker therefore had possession and the Board did not have prior possession.
Obviously, Parker was a completely honest finder; would the outcome have been
different if he had been dishonest? Consider the following dicta of Donaldson LJ:
One might have expected there to be decisions clearly qualifying the general rule where the
circumstances are that someone finds a chattel and thereupon forms the intention of keeping
it regardless of the rights of the true owner or of anyone else. But that is not the case. There
could be a number of reasons. Dishonest finders will often be trespassers. They are unlikely
to risk invoking the law, particularly against another subsequent dishonest taker, and a
subsequent honest taker is likely to have a superior title: see, for example, Buckley vGross
(1863) 3 B. & S. 566. However, he probably has some title, albeit a frail one because of the
need to avoid a free-for-all. This seems to be the law in Ontario, Canada: Bird vFort
Frances [1949] 2 D.L.R. 791.
ßThe Modern Law Review Limited 2002 (MLR 65:3, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 603
* Faculty of Law, University of Sheffield. I am grateful to an anonymous referee for comments on earlier
drafts. I am, of course, solely responsible for any remaining errors or imperfections.
1 The foundation case is Armory v Delamirie (1722) 1 Stra 505, 93 ER 664. The purpose is to avoid a
situation where ‘lost property would be subject to a free-for-all in which the physically weakest would
go to the wall’: per Donaldson LJ in Parker v British Airways Board [1982] QB 1004, 1009C.
3 M.G. Bridge, Personal Property Law (London: Blackstone, 2nd ed, 1993) 56.
5ibid 1010A.

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