Treasure trove

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If a valuable object is found on a person's land, there is often some uncertainty about who should acquire Title to it. The starting assumption is that the landowner has a better title than anyone else, apart from the original owner; if the original owner does not assert a claim within the limitation period, the landowner's title becomes, effectively, indefeasible (but see parker v british airways board (1981) for a counterexample).

Where the object is of precious metal, the situation is more complicated, because the ancient law of treasure trove may apply. This law extends back at least to the early days of the English legal system, and perhaps even to anglo-saxon times. Property that is treasure trove must be handed over to the Crown, and neither the person who finds it nor the person on whose land it is found acquire any title to it. To retain such property without the authority of the Crown is probably a criminal offence, although prosecution is extremely difficult.

For an object to be deemed treasure trove, probably the following must apply.

  1. It was deliberately concealed on the land, not lost
  2. The original owner intended to reclaim it at some point (that is, it was not simply discarded)
  3. The object is made of gold or silver

A person finding such an object is expected to alert the local Coroner, who will make a decision on whether it is treasure trove or not. If it is not, then the person finding the object and the person whose land it was found on (if they are not the same person) will have to battle it out for ownership under the usual law of property. I use the word 'probably' in the preceding definition because, in reality, none of the criteria for treasure trove are well defined. In particular, it is not clear at what point an object made partly of precious metal (most coins, for example) becomes precious enough to qualify. In Attorney General of the Duchy of Lancaster v GE Overton [1982] 1 AllER 524,Lord Denningsuggested that the proportion of precious metal should be at least 50%, although clearly this decision is based on a recognition that a line has to be drawn somewhere, not on any particular logic.

It is not entirely clear what purpose the law of treasure trove was expected to serve. Originally items of treasure trove entered the Treasury, and contributed to the general wealth of the Crown. However, even in the 19th century it was recognized that treasure trove would not create an appreciable income for the Treasury, even if all finds were declared, which they weren't. It has been suggested that the original purpose of treasure trove was to discourage people from concealing hoards of coins to avoid paying tax on them, but there isn't much evidence for this. In any case, the Treasury has little or no interest in treasure trove, and in 1886 it advised that all items of treasure trove should be offered to the British Museum, which would compensate the finder if decided to keep them. In practice, the finder is offered the full value of the find, provided he is deemed to have acted properly (and not, for example, concealed part of the find).

At present, there are only about thirty findings of treasure trove a year in England and Wales, and it has to be wondered whether the law of treasure trove continues to be of much use. It is argued that treasure trove prevents items of archeological value being lost to the state, but this is only the case if people who would otherwise keep these items for themselves are encouraged by the law to turn them in. In any event, many more important archeological discoveries are of iron, bronze, and stone than are of gold and silver, and these are not covered by the law at all. On of the most surprising things about the current law is that it rewards the finder, not the landowner, in circumstances in which title would clearly devolve to the landowner if the find were not treasure. There have a number of calls for reform but, as yet, these have not elicited much interest.

Land and Property Law