Vail Law: ‘Finders keepers’ is more complicated than on the playground (column)

Finders keepers, losers … well, you know.

Or do you?

What does the law have to say?

We all learned in grammar school that a “found” something was an “owned” something. But is that so? Would the law be on your side?

Certainly a found penny is yours to drop in your pocket. But what if you found a Rolex? Or the keys to an unlocked Lamborghini? Where does the childhood ditty end and the law step in with a stern “no.”

At common law — the law established over time by the piling up of precedent laid down by case law over time — there’s a clear distinction between “lost” and “mislaid” property. Lost property is personal property (speaking broadly, anything but real estate) that was unintentionally left by its true owner. “Mislaid” property, on the other hand, is personal property that was set down by its owner, unintentionally left and then forgotten. “Darn it, where did I leave that Lambo Aventador S Coupe of mine?” Real property — real estate — may not be lost or mislaid.

‘Lost’ vs ‘mislaid’

For example: a wallet that falls out of someone’s pocket is lost. A wallet accidentally left on a table in a restaurant is mislaid. Sort of subtle, OK?

At common law, a person who found lost property could keep it. That is unless and until the real owner comes forward to claim it. Mislaid property, on the other hand, is generally not the same. It belongs to the owner of the property where it was found. Accordingly, a person who finds a wallet lost in the street may keep it. If a person finds a wallet inside his favorite watering hole, then the shop-keep may have a better claim to the wallet.

The thinking behind this is that owners of mislaid property are more likely to sober up and remember where the property may have been left. If in the interim, you pocketed it, then, well … how would the owner know whose pocket it ended up in? Allowing the property owner to keep it makes it easier for the true owner to recover the property. At least that’s how the thinking goes.

But that’s at common law.

Many jurisdictions now have statutes that modify the common law’s treatment of lost or abandoned property. Typically, these statutes require lost personal property to be turned over to a government official, and that if the property is not claimed within a set period of time, then it goes to the finder and the original owner’s rights to the property are terminated.

“But wait,” you say. “I’ve watched ‘Perry Mason’ and ‘L.A. Law.’ I know my rights. What about possession being nine-tenths of the law?”

Please let me burst your bubble.

What this nine-tenths stuff really means is that — at least in most cases — the possessor of an item of property is presumed to be the rightful owner. But here’s the kicker: unless and until there is evidence to the contrary. If I find your Rolex and hang on to it and, let’s say your initials are W.T.F. and you show up with a picture of the Rolex on your wrist, a sales receipt from Hyde Park Jewelers and a photo ID, then chances are that I may just have to cough up the Rolex.

‘Theft by finding’

And if, in the face of compelling evidence, you fail to return it to the rightful owner, then there’s this. There are, at law, the concepts of “theft by finding” and “conversion.” Well what the heck are those?

“Theft by finding” occurs when someone chances upon an object which seems abandoned and takes possession of it but then fails to take steps to establish whether the object is genuinely abandoned and not merely lost or unattended. In some jurisdictions the crime is called “larceny by finding” or “stealing by finding.”

As a quick aside, besides being lost or mislaid, property may be “abandoned.” Say the owner has renounced all property rights to the object, the property is abandoned rather than mislaid or lost. Abandoning property is intentional. And if property is abandoned and you take it, then it cannot be theft since the person abandoning has relinquished his her rights. Say your neighbor leaves a set of nesting tables by the curb on trash day and has made it clear that he intends to send the tables to the landfill. If you think they would look lovely in your home and you take them, then, “no harm, foul.” Shine ‘em up and stack your curios on them.

“Conversion” has nothing to do with a house of worship. In essence, conversion means wrongfully keeping something that has rightfully come into your possession. If you loan me your Lambo, then I have come into (temporary) possession rightfully. But if I decide to keep it, then that is conversion. Although you loaned it to me and I came into possession rightfully, I did not have the right to hang on to it. And conversion may be considered a crime.

One last little detour is “treasure trove.” Treasure trove is property that consists of coins, currency, jewels or other valuables hidden by the owner. To be considered a treasure trove and not mislaid property, the property must have been deliberately hidden or concealed and sufficiently long ago that the original owner can be considered dead or not discoverable. Under American common law, treasure trove belongs to the finder unless the original owner reclaims it. Some states have rejected the American common law and held that treasure trove belongs to the owner of the real property in which the treasure trove was found. These courts have reasoned that the general American common law rule encourages trespass. Sheesh.

Finders keepers?

It’s sort of complicated.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.