‘A person steals, who, without the consent of the owner, takes and carries away anything capable of being stolen, with the intention, at the time of such taking, to permanently deprive them thereof, notwithstanding that the person, at the time of such taking, believed they were the owner, or part-owner thereof’
When I was at Police Training College, many, many years ago, the above definition was taught as part of basic training, and it is to the credit of the lecturers, that I can still recall the words as clear as yesterday (along with many other ‘definitions’ that were drilled into us during our stint at Police College).
This was in the days before the current Theft Act 1968, although most of the essential elements remain the same today. ‘Appropriation of property belonging to another, dishonestly taking with intention to permanently deprive’ – all words that are to found in the ‘new’ Act.
The interesting wording – anything capable of being stolen – always amused me, as it used to conjure up all sorts of scenarios, although of course, in reality, it could mean just about anything using the right equipment.
What is clear in the 1968 Act, is the matter of a person ‘believing to be the owner, or part-owner thereof’, which brings the subject of materials left on site into focus. As a dispute expert witness, I frequently come across cases where materials left over from a project become subject to contention regarding ownership.
It must be the case that every project will revolve around the precise wording in the contract. Simply writing that ‘ownership of all materials to remain the property of the contractor until all monies have been paid’ (or similar phrases) can be misleading, if the amount left unused on site was included in the original quote. For example, if the quotation stated fifty square metres of paving, and only forty metres were actually laid, the remaining ten metres could be held to be owned by the customer, as the amount on site was the same as the quotation.
Precise wording becomes extremely important in these situations, although if the case suggested above went to Court, it is extremely likely that ownership of the contended ten metres would remain with the customer, not the contractor. I have known cases where a customer has been accused, by the contractor, of ‘stealing’ products that were subsequently stored elsewhere on site.
If, however, there was additional paving brought to site over and above the fifty metres, to allow for wastage and cutting, that material could be held to be the property of the contractor, as it was clearly extra over and above the quoted amount. This is clearly a case that does not require any mediation.
Of course, things are never that simple, and it is therefore very important to set out clearly the scope and amount of work that is included in a priced quotation. To be clear, even if the term ‘Estimate’ had been used instead of ‘Quotation’, any material left over and above the ‘estimated’ amount would remain the property of the customer if it was in excess of the ‘estimated’ figure.
In the case of materials such as ‘consumables’ e.g. cement, sand, ballast etc, it is unlikely that the contractor would insist on removing these from site in the event of a dispute, as it would not be worth the effort and cost. It is usually hard landscaping products – paving, bricks, stone etc, that become objects of value and therefore contentious.
All products that have been fixed to the property, e.g. paving and walling, become part of the property, and are not ‘capable of being stolen’ or removed from site. In any event, they have become the property of the customer/owner, and the contractor cannot ‘part own’ a wall or patio. You cannot ‘take and carry away’ a fixed landscape feature, which clearly belongs to the property.
Any question of ownership and valuation must be subject to agreement and evaluation of the amount expended to produce that feature having due regard to the costs charged by the contractor in the first place. In the event of a dispute, this would become a matter for the Court to decide, at a hearing, by a Judge, who will provide instruction to both Parties regarding values and payments.
We have all seen YouTube films of contractors breaking into gardens and destroying works carried out without final payment being made for whatever reason. The contractor literally smashing the paving and breaking down walls, leaving the customer with a total wreck. Quite apart from risking a criminal record for trespass and criminal damage, causing fear and disorderly conduct/breach of The Peace and other similar Laws, the contractor loses all chance of payment through the Legal process and due protocol, gaining nothing from the exercise.
Better by far to ensure that the wording in the contract is clear and express, allowing no room for any contention regarding the ownership of all and any materials delivered to, and used on a project, to protect both the contractor and customer.
Alan Sargentwww.landscapelibrary.co.uk