This story is a great example of how real life and law can diverge. I found it on azcentral.com. Most of the details come from a story in the October 23, Cleveland Plain Dealer.
A contractor in the process of remodeling a house in Ohio found $182,000 in Depression-era currency hidden inside a wall in the house. The money (or most of it, anyway) was apparently hidden by a deceased prior owner of the house.
So, who gets the money: the contractor (who I’ll call the “finder”), the owner of the house (who I’ll call the “property owner”), or the heirs of the person who hid the money (who I’ll call the heirs of the “true owner”)?
I’ll give you the textbook answer in a minute. First I’m going to tell you how the situation played out in real life, because it is much more instructive. In real life, the finder told the property owner about the money and apparently turned it over to the property owner. The property owner spent some of the money and later said some of it was stolen from her.
The property owner offered the finder ten percent of the money. The finder held out for forty percent. The heirs of the true owner found out about the money because the finder and the property owner couldn’t agree on how to split the money. All three parties ended up in a lawsuit over who got how much of it.
By the time it was over, the property owner gave up because she had spent, or lost, more than three-fourths of the money. I have a hunch that her failure to make a police report about the alleged theft of some of the money probably contributed to her giving up.
That left the finder and the heirs of the true owner arguing over $25,230. How did the court divide up what was left?
The finder got 13.7% of what was left. According to the court that percentage would have gone to the property owner if she had not given up, but since she did the finder got it. The court apparently arrived at that percentage because that portion of the money was not clearly identifiable as belonging to the true owner.
The other 86.3% of what was left went to the heirs of the true owner because that percentage of the original amount was identifiable as belonging to the true owner (it was in envelopes with the return address of the true owner’s business on them).
The news accounts didn’t say when the money was found, but we do know that the Plain Dealer first reported on the matter in December 2007, and the heirs of the true owner got involved shortly after that, so it took at least ten months for the matter to get resolved after the heirs of the true owner jumped in. I’m surprised it got decided that quickly. Perhaps after the property owner was eliminated from the contest, the finder and the heirs of the true owner were able to agree on the relevant facts, which would have made it possible for the court to make a decision without a trial.
What is the textbook answer? According to American Jurisprudence 2d, which all lawyers (or at least all old lawyers like me) know is a prime source for a quick answer to a textbook question like this, is: the treasure trove belongs to the finder against all the world except the true owner. Contrary to the finding by the court in Ohio (perhaps there is an Ohio law that changes the rule), the finder’s right to the treasure trove is superior to the claim of the owner or occupant of the property where the treasure trove is found, even if the finder is working for the property owner.
If the American Jurisprudence rule were applied to our story, the property owner would have had no right to the money. The finder would have been entitled to keep all of the money unless the true owner could be identified, in which case the true owner would get it.
The rule doesn’t produce the result you might expect, but it has the benefit of being clear and relatively easy to apply. In real life, as our story vividly illustrates, the result is often much messier.
NO SALES TAX ON REAL ESTATE TRANSACTIONS
You may remember several months ago I wrote about a City of Tucson proposal for a registration fee for vacant properties. At the time my information was that the City came up with that proposal as a way to fund an affordable housing trust fund after a proposal for a real estate transfer tax went nowhere. Well, now that Proposition 100 was adopted in the general election this month, the idea of a real estate transfer tax (or to put it in more familiar terms, a sales tax on real estate) is out the window.
Proposition 100 passed overwhelmingly, 77% for to 23% against. I’m no political analyst, but it seems to me that a vote that lopsided had to be motivated by more than just affinity for the real estate industry interests that backed the proposition. I suspect that it was motivated at least in part by a distaste on the part of the electorate for the revenue hunts undertaken more and more frequently these days by governments at all levels, but particularly local governments.
I am not suggesting that affordable housing is not a problem that needs to be addressed. What I am suggesting is that the way for local government to raise revenue to address such a problem is not to cast about for any available stream of commerce that can be taxed. Taxing anything that moves, as opposed to convincing the electorate that an increase in an existing tax is necessary to solve a particular problem, is not a good way for local governments to raise new revenues.