In a recent decision, an Alberta court was presented with a case in which the buyers of a home had found $500,000 in cash and gold hidden around the property. At issue was whether they were entitled to keep it.

Buyers Find Cash and Gold Hidden Around House

In 1972, a couple purchased a house in Edmonton. They were the first and only occupants until the house was sold to the buyers in September of 2017.

The husband predeceased the wife, who passed away on September 30, 2016. Their nephew was appointed the personal representative of the wife’s estate on June 14, 2017.

It took the nephew, the couple’s youngest daughter and other family members many months to sort and empty out all the items in the house after the wife passed away. The nephew also hired cleaners who spent over 18 hours cleaning the house.

The buyers then took possession of the house on October 16, 2017. They had planned some renovations and painting before moving into the house.

Two days later, the buyers’ found some tins in a small shoe cubby in the house; the tins had $100,000 hidden in them.

The next week, the buyers began cleaning the basement kitchen and discovered more tins of money. The tins contained cash and a number of gold wafers and coins. In all, the cash and gold had a value of approximately $500,000.

The buyers did not contact the realtor, the police, or the nephew to advise them that the cash and gold had been found. Instead, they took $100,000 of the money and tried to deposit it at their bank; however, the bank contacted the police, who seized the money.

The nephew maintained that the assets belonged to the deceased wife. The daughter said she recalled her mother telling her that if anything should happen to them they had “hid money in the long cupboard under the stairs”. However, the nephew also stated that, while the deceased wife had alluded to there being money in the house, he had not known whether or not to believe it because of her mental condition. Additionally, the wife had never given the nephew any indication at any time prior to her death that there were valuables hidden in the house.

The buyers did not dispute that the cash and gold belonged to the wife at the time of her death; however, they claimed that the real estate purchase contract included the sale of the cash and gold.

The nephew applied to the court for a summary judgment to determine who was entitled to the cash and gold. In his opinion, the cash and gold belonged to the wife’s estate.

Court Explains Law on Finders

The court began by explaining that the ownership of the personal property would be determined under the law on finders: a finder acquires title to the personal property subject to others with antecedent rights (usually the true owner) provided they are not found to have abandoned those rights. The court further stated that the law on finders could be characterized as follows:

“Orthodoxy has it that the finder of a chattel acquires a title that is good against the entire world except for the true owner. That oft-cited proposition is a little misleading. Not all found property is necessarily presently owned. A recovered item may have been abandoned by a previous owner. It is self-evident that a finder of ownerless property can face no superior claim. It is not only the true owner who may assert a prior right, but anyone with a valid and subsisting entitlement, including, theoretically, some previous finder. Therefore, a more accurate general proposition is that a finder acquires title that is good against the world, except for those with a continuing antecedent claim. This is a general statement about the relative rights of owners.”

The court then stated that, under the circumstances, the question hinged on whether there was intent to abandon the property.

The court explained that an intent to abandon requires knowledge but that there was uncertainty as to what the nephew knew about the hidden assets. The court stated:

“The extent of [the nephew]’s knowledge that there was money and gold hidden in the House at the time of the sale is a significant factor in the factual analysis in ascertaining the intention to abandon. The time and effort cleaning and sorting personal property are factors to consider, as is his decision to sell the property after that exercise. Ultimately, his state of mind at that point in time must be determined.”

While the buyers raised abandonment as a defence, the nephew argued that there was no abandonment.

Because the court found that the evidence was unclear, the case did not qualify for summary judgment.

As a result, the nephew’s application for summary judgment was dismissed. However, the court noted that whether further affidavits would be sufficient to clarify the evidence or whether a trial would be necessary remained to be seen.

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At DBH Law in Calgary, our real estate lawyers have more than 25 years of combined experience acting for purchasers, lenders, and developers through all stages of real estate transactions.

We help our clients avoid huge areas of risk, including poorly drafted or incomplete agreements of purchase and sale, hidden fees, encroachment or easement issues, complex concerns like properties held in trust, and similar pitfalls. We also look for contract language which may impose unfavourable duties or obligations. To learn more about how we can help, contact us online or by phone at 403.252.9937.