Treasure and Finds in Spain: An Overview of the Current Regulation with Practical Examples.

AuthorSuarez-Mansilla, Marta

    The regulation of treasures and finds in Spain is derived from two different legal sources. On the one hand, the civil tradition on the right of private property, and on the other hand, the influence of a new approach for the concept of cultural heritage and its public protective regulation. The Spanish legal system has its roots in the Roman Law tradition. Therefore, ownership is one of the most fundamental rights that the whole legal structure seeks to protect and guarantee against the interference of others. Moreover, it should be noted that title is an expansive right which extends to everything that may fit under the umbrella of the owner's rights. For this reason, title to land extends to what is beneath the surface and what is above it, though this general rule has several exceptions.

    These exceptions are justified by the existence of other matters of public interest that deserve protection over and above the private interest of the property owner. In these cases, there is a general need to prioritise certain principles that are in conflict with a personal utility. Since this balance between co-existing interests alters the natural expectations over ownership, generally conceived as an absolute right, any limitations on the right are laid down in constitutional texts. The system works as a structure that protects the rights of owners but allows exceptions in cases where the public interest is deemed superior and overlaps with the private sphere.

    The Spanish Civil Code ('SCC'), enacted in 1889 and still in force today, already included some examples of limitations over private ownership; for instance, the regulation of mines and waters, where the owner's rights over the land will not extend beneath the surface (the owner of a piece of land will not become the owner of the hydraulic streams discovered there). Since then, many other special laws have been enacted to protect different situations connected with several matters of public interest. It is also necessary to bear in mind the impact of the 1978 Spanish Constitution and the way in which its new principles impact on issues regulated under previous legislation which has not been revoked. When considering these frequent legislative changes two main principles should guide the interpretation of provisions: first, looking for their co-existence when possible, and second, adapting their meaning to contemporary times. Precisely, regarding the matter at stake in this paper, the 1978 Spanish Constitution introduced several references to the cultural heritage and the way in which the public authorities are required to protect it and guarantee access to culture for all. This has had far-reaching consequences related to superior cultural interests over property that finally gave rise to our current Law of Spanish Historical Heritage (Ley 16/85, de 25 de junio, del Patrimonio Historico Espanol), published in 1985.

    This general overview of the matter reveals that this is a complex subject where both private interests and public goals come together. We need, therefore, to define the scope of the diiferent regulations combined over this issue to understand their purposes and the articulation between them.


    II.1 General Approach to the Matter

    As indicated above, the civil notion of ownership of land represents a broad right that extends as far as the sky above and to that which is below the surface of the land. Article 348 of the SCC states:

    Ownership is the right to enjoy and dispose of an object, without limitations other than those set forth in the laws. The Roman legal tradition envisaged ownership as a very important and extensive right.

    That being said, we should also note the commitment of the legal system to make rights co-exist in a fluid and harmonious way, and to protect certain public interests that are of concern to society as a whole. The balance between the res publica and the private sphere has always been difficult and demanding, but the outcome of such a tension is usually the search for the general benefit. The SCC already included some specific examples in this regard. It is clear that, despite the broadness of ownership, it should never be placed ahead of the public interest when there are other rights at stake that may require further attention because they affect many more people. This is particularly so in relation to the area of 'treasures and finds' and the aim of this article is to evaluate the way in which the civil system tackles this matter and to assess the impact of the cultural heritage legislation.

    II.2 Concept of Treasure within the Civil Code.

    The SCC (1) regulates this subject in the following articles, within the chapter related to ownership:

    Article 351

    Hidden treasure shall pertain to the owner of the land in which it is found. Notwithstanding the foregoing, if the discovery were to be made by chance in another's property, or in State property, half shall correspond to the discoverer. If the objects discovered were to be of interest to science or art, the State may acquire them for their fair value, which shall be distributed pursuant to the above provisions. Article 352

    For the purposes provided in the law, treasure shall be deemed to mean the hidden and ignored deposit of money, jewellery or other precious objects, whose legitimate owner is unknown. We can draw three fundamental ideas from these provisions: first, the extent of ownership over the land (above, on and under), second, the need for considering the special value of the find for the arts and sciences, and third, the exact definition of 'treasure' for the Civil Code.

    The extensive scope of ownership has been outlined above. In this regard, the normal consequence of a find will be that the owner of the land on or beneath which it is found will have title. To fully appreciate this notion, it is worth emphasising that ownership is the most extensive right that one can have over a good. It is expansive and flexible so that it will include the things that come to light in the future, such as the fruits or any other kind of profit. Therefore, finds placed beneath the surface will naturally belong to the owner of the land. Any seizure of these new elements would require either justified grounds of public utility alleged by the competent Authority, or some compensation that grants a fair reward for the loss of these assets.

    Nonetheless, it is important to note that the SCC already included an exception to this general rule when dealing with objects of artistic or scientific interest. In these cases, article 351 establishes a special competency for the State to claim that find. The justification for such a rule resides in the superior interest that the asset embodies for the science and culture of the country. The wording of the SCC had in mind the concurrence of several interests over the artefact found, some of them derived from the ownership of the land and others related to the values assigned to the object itself, a situation that the law resolves by giving priority to the State position and making it possible to deprive the owner of title to the find. Thus, it is clear that even at the time when the Civil Code was enacted, there was a distinctive treatment for unique objects of art relevance. There was already a general concern about keeping and preserving them for the sake of the national wealth and richness, although the concept of 'cultural heritage' was at that time rather different from what we consider today. We will pursue this discussion below.

    Finally, it is worth highlighting the very limited scope of action that remains for treasures and finds. As article 352 states, in order to be considered as 'treasure', objects found beneath the surface of the land must be previously unknown and should consist of money, jewellery or other precious objects. The mention of jewels and valuable elements reminds us of the old, romantic notion of treasures that everybody has, and this is precisely the purpose of the provision. In all likelihood, any other finds, apart from money or jewellery, will be objects of archaeological interest, which connects with the situation explained above about artistic or scientific artefacts. The scheme provides little room for the landowner who finds something in his/her land, and who will become the owner only when the two requirements are met: first, the deposit of object is unknown, and second, the materials are money or jewellery. Only in these situations will the holder of the piece of land become the owner of the treasure.

    This procedure of acquiring ownership is based on the right of the owner to take everything the land produces itself. Therefore, as the treasure was hidden within the land, and no one known claims its return, the holder is entitled to acquire ownership over the finds. This mechanism of property right is called 'accession' and explains why, if the object found presents any interest for the arts and sciences, the State must compensate the landowner for its deprivation in some way, since, theoretically, he/she should have retained it as a part of the fruits he/she was entitled to.

    However, the structure outlined above is subject to many exceptions that the legislation on cultural heritage has introduced to protect assets of historical and artistic interest. The current scope of the SCC provisions is undoubtedly limited, and the whole system of treasures and finds regulation rests now on the special laws of cultural heritage, though these rules are based on the essential characteristics of the law relating to ownership as laid down in the Civil Code, as will be seen below.


    III.1 General Approach to the Regulation of Spanish Historical Heritage Law

    The current regulation of cultural heritage is directly linked to the constitutional approach of culture as a social factor. It is necessary to recall that the Spanish...

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