Property Law Assignment: Case Analysis Based on Tort of Conversion, Trespass &Detinue

Question

Task: Property Law Assignment Part A: (Problem Based Question) Assume that you are an associate for a member of the bench of Queensland’s Supreme Court. Her Honour has asked you to research the following problem to assist her prepare a draft judgment.

Facts
The matter involves Sam, a homeless person, who had taken up residence in the basement of an abandoned building “somewhere” in Brisbane. Not much is known about Sam other than he is able to produce by hand high quality architectural sketches and portraits, which he sometimes exchanges on the street for food, or domestic items he needs (toilet paper or a towel etc). Locals say he enjoys haggling over the barter, and is insulted by the offer of cash when offered. He loves the basement because it is weather tight and secure, with old filing cabinets for his “stuff”. He also has access to a working bathroom and toilet facility in the floor above him. “Cold water is better than none at all” he often quips. Sam’s age is unknown, and he can’t remember much about his past life (diagnosed as having Alzheimer’s disease). His clothing is relatively clean, and occasionally he is seen in new clothes (he likes bright colours), albeit slightly ill-fitting.

The building containing Sam’s basement has been vacant for 18 years, and has had two previous owners. The current owner has possessed the building for the last 10 years, and fondly remembers Sam demanding he leave “his place” when first inspecting the property ten years ago. The owner was happy for Sam to occupy the basement. Sam provided him with a sketch once every so often as “rent”, and the owner provided padlocks and locks to secure the entrance to the basement as well as bedding and similar items. Sam appreciated this because sometimes he would go on a bender and disappears from the area (and basement) for a few days, sometimes even a month, and always felt comfortable that “his stuff” was safe in his absence. Six months ago, the owner transferred ownership of the building to a corporation (referred to hereafter as the “Corporation”) located overseas. The current owner said that whilst there was nothing contained in the written contract of sale, there was an “understanding” that the new owner (the Corporation) would “look after Sam”. They provided Sam with a key to the new padlocked gate enabling him to enter the site, which they had fenced off. Six months after the ownership had passed to the Corporation it decided to redevelop the site. Whilst Sam was away on one of his benders the Corporation demolished the building, including the basement. In the process of doing so one of their workers found a duffle bag containing $250,000 in cash, several Rolex watches and items of jewellery that were valued at a total of $25,000. The cash was in bundles of $5,000 securely wrapped in “gladwrap”. Two bundles were open and it appears someone has used the cash from those bundles.

On returning from his bender Sam was outraged that his “place” had been destroyed, and that the Corporation had stolen his “stuff”. The Corporation has offered Sam $10,000 as “relocation assistance”, but refused to return the duffle bag and its contents. Instead, they had handed the watches and jewellery to the police, and divided the cash amongst the demolition crew. The Corporation also stated that Sam had not been seen on site for two weeks and they thought he had left or died. They stored his bedding clothing, and sketch books in a storage facility. They have offered to return them to Sam.

The previous owner has supported Sam by funding his legal action, which focused on the tort of conversion, trespass and detinue (duffle bag and contents).

QUESTIONS
Her Honour wants clarification on:
a) Who owns the duffle bag and its contents?
b) Is Sam entitled to the above remedies?
c) Is Sam entitled to a remedy for the destruction of the basement?
d) Assuming yes to (c) what would be that remedy.

Part B: (Essay Style)
Who owns “street art”?
Discuss whether (unrequested) graffiti drawn/painted on walls, buildings located on private property is possessed by the owner of the private property or the “street artist”. Is it a “fixture”?

Can the owner of the private property bring a legal action against the artist for unwanted street art? Assuming they can what remedies would be available to the owner of the private property? Alternatively, if street art is owned by the street artist what action could the street artist bring if the owner of the private property had the graffiti removed? What would be the position if the property was leased or a tenant was in control of the property?

What you should consider are the following:
• existing coverage by statutes;
• relevant cases; (International as well as Australian decisions)
• scholarly articles;
• news items;
• reports by legal reform commissions (ALRC).

Whilst you are expected to refer to literature as suggested above do not forget this paper is your own work- so express your opinion.

Answer

Answer 1:
Issue:
Based on the facts presented in the case study undertaken in the property law assignment, the following are the issues that should be addressed:

• Who is the owner of the duffle bag and the contents inside it?
• Can Sam bring an action against the corporation on tort of conversion, trespass and detinue?
• Is Sam entitled to a remedy for the destruction caused to the basement?
• If yes, then what are the remedies that Sam would be entitled to?

Relevant rules:
In relation to property law, the assets holders are given limited ownership rights of their goods. The goods may be personal in nature. In case of infringement of the goods, they have the power to take legal steps against any corporation or any other person who denies them of their ownership over the given property . The trespass to goods is an act that is committed intentionally and with direct interference with the property of some other person. There is deliberate destruction that is caused to goods and in the absence of lawful justification of the same. The general rule is that the person who is in possession of the property is entitled to maintain it but not against the true owner.

This means that he is entitled to keep the possession however the original owner remains the same. This was decided in the case of Oxford Meat Co Pty Ltd v McDonald . In the case of Waverley Borough Council v Fletcher, the case involved collision between the finder of the goods and the actual owner of the land including all that is attached to the land. In the present case, two specific questions were raised that is, who, between the finder and the lawful owner of the land is entitled to receive the property? Secondly, how is the answer to the above question expected to impact the land that is otherwise open for the general use? In the opinion of Auld LJ it was held that a person should differentiate between the things that are actually on land and the things that are otherwise attached to the land .

The trespass that is related to goods is not limited to trespass of furniture, equipment, automobiles and chattels. If the property is damaged there is no requirement of submitting a proof. However, it becomes important that the proprietor who is currently in ownership of the goods to assert the title should file a claim for intrude to goods.

Conversion is an act in which a deliberate handling of the goods has taken place that is against or not in agreement with the determination of the owner either through misusing, custody or changing the nature of the goods. This also includes ultimate action that is inconsistent with the rights of the owner to possess the goods that wrongfully deprives the owner of the right to possess the goods . Detinue becomes applicable when wrongful detention of the goods has taken place in which one person declines to give up or return their individual property to their rightful proprietor only when the owner claims the right to possess the goods. The rule of dentinue becomes applicable only when the owner has proprietary interest or actual possession of the property. In most of the cases, detinue is often confused with the tort of conversion but the two differs in the logic that an action is considered as detinue and not conversion when the owner properly asks for the property back and is still refused of the same .

Application:
Based on the rules presented in the above section, it can be said that the owner of the duffle bag and its contents is Sam as he rightfully possessed the goods over a long period and continued with the ownership as long as his duffle bag was not wrongfully taken away by the members of the corporation. It is because of the unauthorised taking away of the stuffs from the bag that outraged Sam. The unlawful interference of the goods can make the corporation members liable for conversion, detinue and trespass to goods. Sam can therefore, bring an action against the members of the corporation for tort of conversion, detinue and trespass to goods.

The tort of conversion was committed by the corporation when it demolished the building and took away the duffel bag containing cash and other items wrongfully. Sam was not informed about the demolishment and the entire process took place in an inconsistent manner making the action of the corporation illegal under tort of conversion. Likewise, trespass to goods had also taken place by the corporation when it interfered with the goods of Sam in a illegal way. Thus, Sam has the authority to file a claim against the corporation for trespass to goods, conversion as well as detinue.

Conclusion:
The remedies available to Sam in case of trespass to goods include compensatory damages, nominal damages, exemplary damages and injunctions. In case of tort of conversion, the court analyses the damages that is caused due to conversion. It may also include damages that are compensatory in nature. Other than the civil remedies that are available, if the nature of the offence are serious then criminal charges can also be brought against the person or the corporation who has committed conversion . The remedies that can be available to Sam in case of detinueare ordering for the delivery of goods that has been wrongfully taken away by the owner. In the present case, the duffel bag is to be returned to the owner, Sam.

Sam shall also be entitled to the destruction caused to the basement as it was done under the general rights of the tenant under the Australian Property law. The landlord cannot make repairs or redevelop the site in the absence of any kind of knowledge to the tenant especially if it is to cause great amount of changes to the property where the tenant resided. The landlord should inform the tenant about it and since in the present case, Sam was not given any kind of notice therefore it can be said that he can claim for damages both nominal and compensatory in nature because of the losses suffered by him.

Answer 2:
Option B:
Street art is a contentious topic. A Banksy in a municipality or in a community may become aartistic personality and fetch in different tourists inside the place. However, in the absence of an authorisation provided by the owner, street artists even if it is banksy may visage persecution for spoiling the possessions. This brings out an important question whether all type of street art is vandalism or not? Does copyright protect the work done by the artists and can the art that is done by the artist be destroyed or not? Graffiti is a very controversial topic of discussion as it is formed from different actions of uprising and appearance and is more usually referred to as tagging. Tagging is an action of possession in which people inscribe their name or some other Id in open. The road art on the other hand, is not just about possession but it also about contribution of concepts and preliminary or developing different conversations .

Different graffiti, it not merely exists on the roads but it can also be seen in movies, museums and books. Without authority or consent from the assets owner, street art is unlawful. Thus, to produce a legal street art, permission should be obtained from the proprietor of the construction. If the artiste has failed to obtain consent, the proprietor or some other local council can take away the paint or the art that is done. Having said that however part of the charm of the street art is its transient nature. The work can be reproduced in different ways such as photographs . If the painting or the street art is done with the consent of the owner then a protection can be obtained over it. A copyright protection can be received for the artistic work. Copyright allows protection of the work where the work is:

• An outcome of skill and effort
• Original and innovative
• Is in a form that is recorded such as sketches, paintings etc

Under copyright law of Australia, road artists have the right to stop some other person from copying his work or reproducing it, or publishing it or even communicating their work in the absence of consent. Copyright can be obtained in street art until the lifetime of the performer along with extra 70 years. However, the owner of the property should not be considered as the owner of copyright unless there is some type of agreement between the two or if the law of the states expresses otherwise. In the case of SheperdFairey, a very influential and very famous artist well known for his poster of Barrack Obama “Hope” was one of the most iconic images in the Presidential Elections of 2008. However, he faced legal challenges as he used glues, paints on the walls of public buildings in the absence of permission. This is considered as an act of vandalism. He was arrested many times because of this and has also been fined multiple times because of this. This shows permission is very important before painting on public or private buildings. In the case of Banksy, he was also fined multiple times due to painting on walls that were public. In the opinion of the Australian Law Reform Commission, validation act should be formed in a way so that the damage done in the ICAC is repaired.

When street artists work in collaboration with some other person then both the artists who worked on the painting shall be considered as copyright owners. Likewise, street art is often done to promote business or embellish the property. Unless some other agreement is present, the artist shall own and receive copyright in the work .

Additionally, road artist also have ethical rights over their labour that is distinct from the copyright and are private rights that cannot be transferred. Some of the moral rights include:

• Integrity: The correct to not make the work focus to some kind of disparaging statement
• Attribution: The writer of the work should be given the due credit
• The authorship should not be attributed falsely

If a person wants to use the road art for the purpose of business or for advertisement then consent should be obtained from the street performer. There will be a need for certify agreement. The conformity shall allow the party to obtain consent over the correct to use the art however the artist shall continue to enjoy the rights of ownership on the work.

Large companies have fallen into serious troubles for using street art in the absence of consent for the purpose of advertising. The companies settle the matter outside the court so that time is saved and expensive litigation process is avoided.

Using street art in the absence of permission from the artists may lead to breach of their copyright and ethical rights.. The use may include using the art on a website or taking pictures of the work for commercial purpose or for gaining profits. However, if the work is copied or used for review, criticism and reporting news then it shall be considered as fair dealingand infringement does not take place in such a situation. Unlike graffiti, it not only exists on the streets but it can also be seen in movies, museums and books. Thus, to produce a legal street art, permission should be obtained from the owner of the building. If the artist has failed to obtain consent, the owner or some other local council can remove the paint or the art that is done. Having said that however part of the charm of the street art is its transient nature Incidental inclusion of street art in cinematic exertion also falls under the category of exception. What makes it incidental depends on the situation of the case. However, the inclusion does not become incidental if the cinematic work publishes the work online. Thus, one should obtain consent before publishing the work on their website or online.

Conclusively, it can be said that both the property owner as well as the artists requires consent for proceeding with street art. The artists need permission before beginning with the final work while the owner needs to ensure that the work is not copied or used by him for unfair purposes as against law . ?

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