Unowned property
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| Part of thecommon lawseries |
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Higher category:LawandCommon law |
Unowned propertyincludes tangible, physical things that are capable of being reduced to beingpropertyowned by a person but are not owned by anyone.Bona vacantia(Latinfor "ownerless goods" ) is a legal concept associated with the unowned property, which exists in various jurisdictions, with a consequently varying application, but with origins mostly in English law.
Nearly every piece of land on the Earth is a property and has a maintainer (owner). The class of objects, "unowned things", are objects which are not yet property; either because it has been agreed by sovereign nations that no one can own them, or because no person, or other entity, has made a claim of ownership. The most common unowned things areasteroids.The UN'sOuter Space Treatydoes not address the issue of private ownership of natural objects in space. All asteroids remain unowned things until some person or entity makes a claim of property right to one of them.
In an experimental legalcase of first impression,a lawsuit for adeclaratory judgmentwas filed in aUnited States Federal Courtto determine the lawful owner of Asteroid433 Eros.433 Eros was claimed as property by Gregory W. Nemitz of Orbital Development. According to thehomestead principle,Nemitz argued that he had the right to claim ownership of anycelestial bodythat he made use of; he claimed he had designated Eros a spacecraft parking facility and wished to chargeNASAa parking and storage fee of twenty cents per year for itsNEAR Shoemakerspacecraftthat is permanently stored there. Nemitz's case was dismissed due to lack ofstandingand an appeal denied.[1]
Ferae naturae
[edit]Ferae naturae(lit. "wild animals of nature" ) is aLatinlegal term referring to wild animals, in contrast todomitae naturae(lit. "tamed [animals] of nature").[2]
Inproperty law,ferae naturaeresiding on unownedreal propertyare not predisposed to one party or another in regards to possession.
See:Pierson v. Post(3 Cai. R. 175, 2 Am. Dec. 264) (Supreme Court of New York1805)
In the event that the animals are on a private entity's estate, the owner of the estate, if pursuing or attempting to apprehendferae naturaeis likely to be deemed, by the court, the rightful possessor to the title of the animal.
See:Keeble v Hickeringill,11 East 574, 103 Eng. Rep. 1127 OR 3 Salk. 9 (asKeeble v Hickeringhall) Queen's Bench,1707
Canada
[edit]Bona vacantiais applied according to the laws of the relevant province, and the roots of the laws may be traced to Roman law.
New Zealand
[edit]Similarly to England, unclaimed money will mostlyescheattothe Crown[3]who may then make further distribution. Unclaimed property other than money might also be claimed on behalf of the Crown but (as with the UK jurisdictions) this is not inevitable.[4]
United Kingdom
[edit]England and Wales
[edit]Bona vacantiais partly acommon lawdoctrineand partly found in statute. It deals with:
- Assets of dissolved companies that have failed to be distributed[5]or have been disclaimed by theofficial receiver.
- Assets of dissolvedunincorporated associationsthat have failed to be distributed
- Assets of the estates of deceased persons that have failed to be distributed due to intestacy and a lack of known persons entitled to inherit[5]
- Some failed trust property
For most ofEngland and Wales,the Bona Vacantia Division of theGovernment Legal Departmentis responsible for dealing withbona vacantiaassets on behalf of the Crown.[6][7]If no heirs to an estate can be found then the assets are realised and the balance is transferred to HM Treasury. The division deals only with solvent estates whose net value exceeds £500.[8]The assets of dissolved companies automatically pass to the Crown by law. They are realised by the division and the revenue passed to the Exchequer, although the division has a power to disclaim onerous assets.[9]Liabilities associated with assets do not automatically follow those assets intobona vacantia.Care should be taken to distinguish between assets remaining when dissolution commences (which might be distributed to shareholders or others in that process) and those that for various valid reasons remain undistributed at the end of dissolution. Some assets might only come to notice after dissolution has taken place.
Cornwall and Lancashire
[edit]For assets based inCornwalland within the traditional boundaries of thecounty palatineofLancashire,Farrer & Cosolicitors deal withbona vacantiaon behalf of theDuchy of Cornwalland theDuchy of Lancasterrespectively.[7][10]In both cases, if no rightful owner is found for the assets, the assets legally pass to the respective duchies. It has been stated that current practice for both is to donate these assets to charity. However, there is evidence that these funds have been used for personal profit of The Crown.[11]In Lancaster the beneficiaries are theDuchy of Lancaster Benevolent Fundand theDuchy of Lancaster Jubilee Trust,while in CornwallThe Duke of Cornwall's Benevolent Fundreceives the assets.[12]
WhenHenry IIIestablished in 1230 the Office of the Royal Escheator to centralizebona vacantia,Earl Edmund of Cornwall[dubious–discuss]pressed his claim tobona vacantiaby having his viscounts continue to handle them. Until the 1337 and 1338 Duchy Charters, the issue was contentious between the king and earl. In the Duchy Charters, the king formalized thebona vacantiaright with the duchy.[5][verification needed]
When Lancaster was made acounty palatinein 1351 byEdward III,the Royal Escheator's powers over Lancaster ended, andbona vacantiaproperty escheated to the duchy instead of the Crown.[13]
Northern Ireland
[edit]InNorthern Ireland,bona vacantiais dealt with by the Crown Solicitor as the Treasury Solicitor's agent. The value of the assets collected in Northern Ireland are separately identified in the annual report of HM Procurator General and Treasury Solicitor Accounts for the Crown's Nominee.
Scotland
[edit]InScotland,bona vacantiadeals with assets of dissolved companies, the assets of missing persons and lost or abandoned property; lost or abandoned property involves a statutory saving for the Crown in ss.67–79 of theCivic Government (Scotland) Act 1982.[14]It is mostly controlled by common law with some statutes dealing with specific matters such as lost property; the concept also extends to such matters astreasure trove.[15]The separate doctrine ofultimus haeresstates that the assets of those who die intestate leaving no other person entitled to inherit pass to the Crown. Both of these rights, together with treasure trove, are administered by theKing's and Lord Treasurer's Remembrancer,an office held by the Crown Agent, the senior official in theCrown Office and Procurator Fiscal Service(COPFS).[16]Bona vacantiaassets in Scotland are not aggregated with those from elsewhere in the United Kingdom, being paid directly into theScottish Consolidated Fund.
Crown dependencies
[edit]Guernsey
[edit]In Guernsey, assets of dissolved companies may becomebona vacantiaunder s.369 of the Companies (Guernsey) Law, as amended, and are administered by the Receiver-General (HM Procureur).
United States
[edit]Bona vacantiawas inherited from English common law and continues in the form oflost, mislaid, and abandoned property,applied only to personal property that has left the owner's possession, as opposed to an estate left inintestacyafter death. Intangible personal assets such as checks, account balances, and securities are under unclaimed property law, varying by state. The states do not take permanent possession, but act as the custodian of the property in perpetuity on behalf of the rightful owner.[citation needed]
See also
[edit]- Claims Conference,administers compensation funds and recovers unclaimed Jewish property
- Escheat
- Res nullius
References
[edit]- ^The Eros Project
- ^4American Jurisprudence2d ed. Animals § 2
- ^The Treasurer (New Zealand) – Unclaimed Money
- ^treasury.govt.nzArchivedNovember 29, 2010, at theWayback Machine
- ^abc"Laws surrounding Duchy of Cornwall seen as 'mysterious, complex and arcane'".Western Morning News.Local World. November 19, 2011.RetrievedAugust 25,2015.[permanent dead link]
- ^"Bona Vacantia".Bona Vacantia Division.gov.uk.Retrieved26 August2015.
- ^ab"Bona Vacantia and the Duke of Cornwall's Benevolent Fund".Duchy of Cornwall.org.Duchy of Cornwall.RetrievedAugust 25,2015.
- ^"Refer a deceased person's estate to the Treasury Solicitor".12 June 2018.
- ^"Bona vacantia dissolved companies (BVC1)".
- ^"Bona Vacantia".duchyoflancaster.co.uk.Duchy of Lancaster.RetrievedAugust 25,2015.
- ^McClenaghan, Maeve; Evans, Rob; Dyer, Henry; Hunter-Green, Zeke; Kalanaki, Marjan (2023-11-23)."Revealed: King Charles secretly profiting from the assets of dead citizens".The Guardian.ISSN0261-3077.Retrieved2023-11-28.
- ^"Inside the Duchy of Cornwall - part four".Western Morning News.Local World. July 16, 2015.RetrievedAugust 25,2015.[permanent dead link]
- ^"Records of the Palatinate of Lancaster".National Archives.
On 6 March 1351, Edward III conferred on his cousin Henry, fourth Earl of Lancaster, the dukedom of Lancaster. In the same charter he raised the county of Lancaster to a county palatine [...] The profits of justice belonged to the new duke. The King['s]... escheator for the north-western counties of England was instructed to take no further action in the Palatinate. The Duke appointed his own escheator, who presumably accounted to the Duke at his Exchequer.
- ^Crown Office and Procurator Fiscal Service – Bona Vacantia
- ^http://www.scotland.gov.uk/Publications/2003/11/18319/27604– Review of Treasure Trove Arrangements in Scotland
- ^Official Website of the Crown Office and Procurator Fiscal Service of Scotland
