News that metal detecting enthusiasts discovered a hoard of Viking treasure hit the headlines again recently, notably for the eyebrow-raising £1.98m reward but who is the owner of such finds?
The tenth century collection of rare Viking artefacts, including a sizeable amount of silver, was found in Kirkcudbright, Dumfries and Galloway, in 2014. The National Museum of Scotland is now tasked with raising the reward. Treasure finds such as this one raise several interesting issues, ranging from the ownership of such finds, entitlement to rewards, access to land, and public liability.
Who owns the treasure?
Under Scots Law the concept of ‘bona vacantia’ (ownerless goods) is applied and means that ownership of the treasure passes to the Crown, not the landowner or the finder. Finds must be reported to the Treasure Trove Unit at the National Museum of Scotland where they are assessed and valued and a reward is then recommended.
Who is entitled to the reward?
Scots law provides that the finder of treasure is the person legally entitled to the reward. Notably in the case of the Kirkcudbright treasure, the finder shared the £1.98m reward with the landowner, the Church of Scotland, based on a prior agreement. Although discoveries of the scale of the Viking treasure are extremely rare, it would be wise for landowners to reach an agreement with metal detection groups on profits from any finds in advance of allowing detection activities. Agreements would need to be sufficiently attractive so not to deter the metal detectorists. Such an approach would result in a closer match to the law in England and Wales which is governed by the Treasure Act 1996 and entitles both the finder and the landowner to the reward. Furthermore, if the landowner had not granted permission to the finder to search the land, they are usually also entitled to the finder’s share. This presents obvious difficulties for anyone metal detecting without permission.
Access to Land
In Scotland, legislation on land access rights provides the starting point. Under the Land Reform (Scotland) Act 2003 members of the public have a right to access land for commercial purposes or for profit, providing that activity could also be undertaken otherwise than commercially or for profit. An example would be accessing land as a hillwalking guide. However, the 2003 Act and accompanying outdoor access code restricts access to land with the intention of taking anything away for profit. Metal detectorists are therefore entitled to search land without permission from the landowner, but require consent to do so if they intend to remove their finds for profit, such as a reward. As may be expected, further restrictions apply to searches within a scheduled monument area, where permission is also required from Historic Environment Scotland.
Public Liability
Any landowners seeking a share of the reward for any treasure found on their land are well advised to agree a written agreement that provides the metal detectorists with permission to search and clearly states the agreed split of any reward. It would also be wise to ensure that the metal detectorists have public liability insurance for their activities, to provide cover in the event of any damage or loss caused by their presence or actions while on your land, such as leaving a gate open and allowing livestock to escape.
For more information and advice, please contact Robin Dunlop in our Land and Rural Business team on 0131 225 8705 or by email rdunlop@thorntons-law.co.uk or a member of the Land & Rural Business Team.
