Can land be stolen under English criminal law?
The basic definition of theft is to be found in section 1(1) of the Theft Act 1968. This subsection reads as follows:
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.
The first question which arises, therefore, is whether (for the purposes of the Theft Act) land falls within the definition of “property”. Section 4 of the Theft Act is almost entirely devoted to this question.
Section 4(1) gives a very wide definition of “property”, as follows:
“Property” includes money and all other property, real or personal, including things in action and other intangible property.
It will be noted, therefore, that “real property” (ie land) is expressly included within this definition. (The reference to “things in action and other intangible property” extends the scope of the Theft Act to debts, options, shares, copyrights and similar things which can be owned but not physically embraced.) If section 4 had stopped at this point, it would clearly have been possible to “steal” land in law, and a very interesting question would have arisen about exactly how it could be stolen.
(Section 3 of the Theft Act defines “appropriation” as “any assumption by a person of the rights of an owner …”, and this, in turn, has been interpreted by the House of Lords to mean “any assumption of any of the rights of an owner”: R v Morris [3] 3 All ER 288 — examples would therefore include changing the lock on the front door, changing the owner’s name under the bell, or changing the nameplate on the gate.)
Section 4, however, does not allow “real property” to be treated in the same way as other property for the purposes of the Theft Act. On the contrary, section 4(2) boldly states that a person “cannot steal land, or things forming part of land and severed from it by him or by his direction, except in the following cases …” and there are three of these exceptional cases.
Dishonest trustees, estate agents etc
The first of the exceptional cases is where the defendant is:
a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him.
It should be noted that the authority to sell the land does not necessarily have to arise out of a trust instrument, or a power of attorney, or any other formal document. Thus if an estate agent purports to sell land for a client on the open market, in an arm’s length transaction, but in reality sells it to an associate, or a nominee, at an artificially low price, he may be guilty of stealing the land by dealing with it in that way. (He and his associates may also be guilty of conspiracy to defraud, contrary to common law.)
It is interesting to note that a trustee may be guilty of stealing the land which is vested in him. Thus if he removes fixtures and fittings for his own personal benefit, it will be no defence to a charge of theft that he was, in theory, the owner of those items of property. The criminal law, like equity, will recognise the beneficiaries of the trust as the persons who (as against him) were the persons to whom the property belonged. If the property were held on trust for a charitable object which has not yet been precisely identified (eg if the property were left on trust “for the relief of poverty”, without naming a particular charitable institution), the Attorney-General will be treated as the person to whom the property belongs. This is because he has the power to enforce charitable trusts.
Severing things from the land
The second situation where land can be stolen is where a person is not in possession of the land and he “appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed”.
This provision is not aimed at trustees of the land (who are dealt with in the previous exception) nor at tenants of the land (who are dealt with in the next exception). It is aimed at strangers to the land who cut down trees, or remove walls or fences, or who take away decorative fixtures, roof tiles, and so on. It clearly extends to the removal of soil or of minerals or, of course, to whole buildings if they are moved away in one piece or in dismantled parts. (Smith and Hogan’s book on Criminal law, 6th ed, p 507, contains a reference to a man who was charged with stealing Cleckheaton railway station, Yorkshire, by dismantling it and taking it away.) Naturally, if something has ceased to form part of the land (eg rubble on a building site) it will give rise to no special problems, because it may be stolen in the same way as any other chattel. (However, in the case of rubble the defendant might claim that he believed that the owner would consent to his taking it away. In raising this defence he would be denying that his appropriation of the property was a “dishonest” one.) A dry stone wall will be treated as “land” for the purposes of the Theft Act until such time as it has been dismantled.
Section 4 makes special provision for the picking of flowers and mushrooms for non-commercial purposes. Naturally, on country walks and so on, strangers often pick wild flowers and mushrooms, and (whether or not this will amount to trespass to the land in the law of tort) it was not the purpose of Parliament in 1968 to make this conduct a crime. Accordingly, section 4(3) of the Theft Act contains the following safeguard:
A person who picks mushrooms growing wild on any land, or who picks flowers, fruit, or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose. For the purpose of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.
This provision does not authorise the picking of agricultural crops, market-garden produce, commercially grown watercress, and so on. The subsection is expressly confined to wild mushrooms and wild plants. Indeed, in the case of plants (other than mushrooms), only the “flowers, fruit or foliage” may be picked — not the whole plant itself, however wild it may be. Thus section 4(3) does not give any encouragement to those who think that they can remove trees or shrubs from land (eg at Christmas time). Even in the case of wild flowers (and mushrooms), the defendant may be convicted of theft if it is shown that he had a commercial motive for picking them. (This is one of the few situations where motive will be relevant to the defendant’s guilt or innocence of a criminal charge.)
Removal of landlord’s fixtures
The final exception to the rule that land cannot be stolen is one which relates to the law of landlord and tenant. It is well known to students of land law (but not to many others) that anything fixed to the land belongs to the landlord, even if it started life as a chattel. Thus, if the tenant of a flat or house installs a new bathroom at his own expense, nearly everything in that bathroom (with the exception of only the most insignificantly attached items) will belong to the landlord and he (the tenant) will not be allowed to remove them when he goes. To this there are only two narrow common law exceptions: (1) decorative fixtures installed by the tenant; and (2) trade fixtures installed by the tenant (in business premises). Even in these two cases, the tenant must remove the fixtures in question before the tenancy expires and must put back anything that was there before. If he allows the tenancy to expire without taking advantage of this right (or, of course, if the fixtures do not come within either of these two exceptions) he will be acting unlawfully if, thereafter, he removes them.
Section 4(2) makes it clear that a tenant may be guilty of theft if, “being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land”. This wording obviously makes it a criminal offence to appropriate a fixture or structure which was part of the demised premises when the tenancy commenced (and it is difficult to see how a tenant could think that he had the right to remove any such property), but it is not clear that it makes it the crime of theft to remove a fixture installed by the tenant himself. This is because the tenant could argue that (whatever his civil liability might be) the crime of theft applies only to fixtures and structures which were “let to be used with the land” (ie identifiable at the time of the letting). This, in turn, would cause problems in those cases where a tenancy is renewed at a higher rent which takes account of improvements which the tenant previously carried out (eg because he was legally obliged to carry them out). In such a case they would clearly be “let to be used with the land” at the time of the renewal of the tenancy, even if they were not so let at the time of the original agreement.
In practice, a tenant who was unaware of the ramifications of the law of landlord and tenant, and who honestly believed that he was entitled to remove a fixture or a structure (eg on giving up the tenancy), would not be guilty of any criminal offence. This is because he would lack the necessary mental element to make him guilty of theft or criminal damage.
Although “ignorance of the law excuses no man”, it is nevertheless possible for a mistake about the civil law (eg the law of property) to amount to a defence to a criminal charge in certain circumstances.
Thus in R v Smith [4] 1 All ER 632 a tenant who had installed some electric wiring in his flat had his conviction for criminal damage quashed by the Court of Appeal after he had been prosecuted for removing that wiring without his landlord’s permission. James LJ (giving the judgment of the court) observed that “no offence is committed … if a person destroys or causes damage to property belonging to another if he does so in the honest though mistaken belief that the property is his own”.
It should be noted that a person in possession of land under a tenancy for the purposes of section 4(2) includes a person who holds over after a tenancy has expired or who goes into possession before a formal lease has been executed but with the benefit of an agreement for a lease.
The removal of plants, soil, minerals etc is not forbidden by the Theft Act in the case of a tenant — section 4(2) refers only to fixtures and structures. However, a tenant will naturally commit theft if (knowingly) he wanders to some part of the land to which his tenancy does not extend and then severs such things from that part of the land. In any event, it is a criminal offence for any person (including the freehold owner) to remove surface soil from agricultural land with a view to sale, if the quantity exceeds 5 cu yd in any period of three months and planning permission should have been obtained (and was not obtained): see Agricultural Land (Removal of Surface Soil) Act 1953.
Easements etc
Easements are a form of “incorporeal hereditament” — that is to say, a form of intangible real property. Section 4(2) excludes all incorporeal hereditaments from the definition of “land” (although for all normal legal purposes they would come within that definition). This means that incorporeal hereditaments can be stolen and that they are not subject to the general rule that “land cannot be stolen”. This does not make it any easier to envisage a situation where an easement could be stolen, but it is no doubt not impossible. The fact that the owner of the easement could take legal action to have his right of way, right of light, right of support etc restored to him does not necessarily mean that (in the meantime) his easement has not been stolen. Provided that the defendant had the intention permanently to deprive the owner of his rights, it is not essential that he should actually succeed in that intention.
Stolen property, after all, is quite commonly restored to its lawful owner. In practice, however, a person who “steals” an incorporeal hereditament is more likely to have committed forgery, or some other crime of deception, than straightforward theft.
Summary
In sum, therefore, there is a general rule that land cannot be stolen. It certainly cannot be stolen simply by trespassing on it or by obtaining squatter’s rights to it. However, most cases of dishonestly removing crops or fixtures from the land would amount to theft — more easily, however, in the case of a trespasser than in the case of a tenant. Special rules apply to trustees and other persons who have been given the power to administer or to sell land. They can be convicted of theft if (directly or indirectly) they appropriate the property, or its fixtures, to themselves.
Thus the criminal law tries to strike a balance between, on the one hand, the nature of land as an undoubted type of property and, on the other hand, a type of property with very special characteristics both physically and conceptually.
