- The Washington Times - Friday, August 10, 2007

Fans of HGTV’s “If Walls Could Talk” are familiar with tales of homeowners finding hidden treasures as they explore their newly purchased home or property that has been held in their family for generations.

Sometimes interesting finds are out in the open, in the corner of a basement or an attic. Other times, items are found during a home’s remodeling or renovation.

On the television program, many of the “treasures” are more historic than monetarily valuable, such as boxes of love letters, hidden diaries, antique tapestries or Civil War-era swords.

Recent shows have featured homeowners finding moonshine, shot glasses and dice in their basements, harking back to an era when gambling and drinking were done in secret.

One of the splashier news stories about finding hidden treasure came out in April 2006, when family members of illustrator Donald Trachte Sr. discovered a Norman Rockwell painting hidden behind a fake wall in the attic.

Mr. Trachte had hidden the painting after copying it but had never told his family. Donald Trachte Jr. told the Berkshire Eagle after the discovery, “I think he just wanted to tuck these in the wall for his kids.”

The Rockwell painting was discovered by family members cleaning the home after the father’s death. No dispute could be made about the ownership of the painting because the home had not changed hands.

However, if the home had been sold before the discovery of the painting, ownership of the famous artwork might have been in dispute.

Lawyer Carol Blumenthal of Blumenthal & Shanley in the District says, “Under the law, ‘abandonment’ of property is a matter of intent. If I drop a gum wrapper on the ground, I clearly meant to abandon that piece of my property. But if I leave a painting behind in a home I have sold, the question is whether I forgot it or I meant to leave it behind.”

Bethesda lawyer David Modell says his “gut reaction” to the question of who owns personal property in a home is “finders keepers.”

“The second issue to think about is whether you own the personal property that is in a home once you purchase it,” says Mr. Modell, of the Law Offices of David P. Modell. “If someone has a hidden safe that is attached to the wall, then that is part of the house. The ownership of a loose item such as a painting or an antique may be a little less clear, but essentially, once someone sells a home and leaves anything behind, that’s considered ‘abandoned property.’ ”

Jerry Friedlander, a lawyer with Friedlander, Friedlander & Earman in McLean, says owners who find an item in their home after moving in should look at their contract to determine if anything in the contract applies to their particular situation.

“Normally the sales contract means that you have bought the real estate, not the personal property in the home,” Mr. Friedlander says. “If something is permanently attached to the home, such as a special chandelier, it belongs to you unless the contract specifically says otherwise. If something is not attached to the home and hasn’t been mentioned in the contract, then it belongs to the home sellers. However, once something has been left behind, it now belongs to the new owners.”

Mr. Friedlander points out that although contracts often list items such as window treatments and light fixtures to state whether they convey or do not convey with the property, it would be highly unlikely to see a contract that referred to a hidden item.

“You’re not likely to see a contract which reads, ‘Oh by the way, that treasure I buried in the back yard a decade ago, that does not convey,’ ” Mr. Friedlander says.

Mr. Friedlander says that if a homeowner finds a Monet painting hidden behind some other artwork in the corner of the attic, the painting belongs to the new owners.

“Once you own the property, you own everything in it, even things that have been abandoned,” Mr. Friedlander says. “The burden would have to be on the sellers to prove that they somehow contemplated taking the Monet painting with them. They would also have to prove that the painting belonged to them at all and not to a previous resident of the property.”

Apparently, the new owners could take the Monet and run.

Though the law seems to be on the side of the homeowners and their right to any abandoned property, it is possible that the home sellers could dispute ownership of an item that came to light after they moved away from the home.

If the home sale was an estate sale or a foreclosure, that could muddy the issue more than a standard transaction.

“In an estate sale, the family of the homeowner has had plenty of time before they sell a home and go to settlement to move things out of the house,” Mr. Modell says. “A foreclosure might cause more confusion, particularly if the sheriff had to evict the residents. In that case, the previous owners might have an argument as to whether they abandoned their property or just did not have enough time to remove all of it.”

Ms. Blumenthal says the particular circumstances of each case would dictate how the law would view the ownership of a found item.

“You would have to look at the length of time between the time one owner moved out and the item was found,” Ms. Blumenthal says. “You would also have to look into whether the item was in plain view or hidden in the floorboards, because these facts could help the sellers prove whether they meant to leave something behind or if it was inadvertent.”

Ms. Blumenthal says that situation is similar to someone dropping a lottery ticket at a baseball game and only realizing its value after the winning number is announced. It can be difficult to prove the ownership of such an item.

“People need to make the distinction between whether they intended to leave something behind all the time or whether, had they known it was valuable, they wouldn’t have left it behind,” Ms. Blumenthal says.

Ms. Blumenthal says a foreclosure sale could lend legitimacy to someone’s claim that he or she did not intend to leave personal property behind in the home.

Finding a safe full of money, a valuable painting or a priceless antique are all rare circumstances; most homeowners find less exciting remembrances of previous owners, such as old mops and perhaps a missing sock or two.

In any case, abandoned personal property should belong to the new owners, but the likelihood is that the more valuable the item, the greater the chance that earlier residents would claim their right of ownership.

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