(Editors' note: this article was originally published in the Summer 2013, NEMA News on Legal Issues. We have had several requests to reprint the article in the current issue of New England Museums Now.)

Have you become enthused about the power of new technology to inventory and record details regarding your collection, only to be surprised – even shocked – at the number of objects which the computer now reports as having inadequate documentation of provenance? You are not alone. Computers now make readily visible inadequacies in the record which in past years lay hidden in file card drawers and file folders.

This situation is not unusual. In the many years that museums large and small have been acquiring collections, professional standards of record keeping have changed dramatically. Museum staffs have become increasingly professionalized. Standards of documenting provenance have become more rigorous. Computer technology is now making gaps in the records much more visible.

The big – but fortunately rare – problem is that someone may come forward claiming to be the owner of an under-documented object. But more common is the problem of deaccessioning such an object – clear provenance must be shown for an object to be deaccessioned and sold or transferred to another museum. A problem may also arise if the museum believes it must make an investment in restoration or preservation, but is unsure whether to do so for an under-documented object.

The fact that a museum has custody of such an object indicates that at some point the owner intended the museum to possess the object, but does not tell us whether this was for a limited time or as a permanent gift. The challenge is to discover and document the actual situation in a way which provides a museum with a clear legal title, or returns the object to whoever else has clear legal title.

In the past, lawyers could only try to squeeze the unique situation of museums into laws designed for abandoned or lost property. Recently, however, museums have been successful in persuading state legislatures to enact statutes which specifically address the situation.^[1] With the enactment of the Museum Property Act in Rhode Island on July 11, 2013, all of the New England states have recently enacted or updated their statutes, providing the region’s museums with a clear framework for dealing with under-documented abandoned property.

Following are some of the steps museums should follow – and questions they should ask – when dealing with abandoned property. As the laws in each state may differ, it is important that museum staff read their own state’s specific statute early in the process. At the end of the article is a chart summarizing the basic aspects for each state and a reference to the complete text of each state’s statute.

1. Read the actual statute for your state.

This is a crucial step. Do not rely on workshop presentations, paraphrases in articles such as this, charts, or other short-cuts when actually beginning the process. The statutes are not that long and, though sometimes the language is a bit convoluted, can be readily interpreted with a careful reading. Also be sure to read the entire statute all the way through. Statutes often have internal cross-references, or definitions in one section which answers questions raised by another section.

Often statutory language is further interpreted by the published opinions of courts applying the statute to a specific case. As of this writing, I have not found any such court opinions in the New England states. This is good news as an indication that this process rarely results in extensive litigation, but it also means we have only the statutory language itself as a guide.

(Editors' note: The Society of American Archivists  has a complete list of museum statutes here.)

2. How large an abandoned property documentation effort do you wish to undertake at this time?

Museums vary greatly in the thoroughness of their current inventory. Of course, we all know such inventories should be perfect and complete, but the reality is that they are often works in progress. Depending on the state of your inventory, you may have a complete list of all under-documented objects from a detailed inventory, or a small list of objects of special concern from an inventory still in progress. Perhaps you have only one object of immediate concern. There is something to be said for learning the process by attempting to document one or a small number of abandoned objects before undertaking a large-scale project.

3. Assign staff responsibility and prepare an explanation to the public.

To avoid confusion, assign responsibility for the abandoned property documentation project to one person on staff. All staff should understand what is being done and why, but all inquiries should be directed to a single staff member.

Also, prepare a simple explanation for members of the public about what the museum is doing. It is easy for the public to misunderstand when a museum seeks to document abandoned property, especially if newspaper ads are placed (as explained below). Do not be surprised if people conclude the museum is closing down, especially if the abandoned property is a candidate for deaccession.

4. Which objects have been in the possession of the museum long enough for the statute to apply?

Your state’s abandoned property statute applies only if the museum has had the object in its possession for a specific number of years. The museum must be able to document this. For loaned documents, the loan documentation provides this. For undocumented objects, inventories are the best documentation, but datable photographs, catalogs, or other documentation of past exhibits may also suffice.

You can only proceed with the objects which have been in the possession of the museum for the applicable number of years. Set aside the others, perhaps flagging them for consideration once they have met the time requirement.

5. Which objects have documentation of the identity of who provided the object?

Some objects may have an actual loan document, correspondence, or notes indicating a loan, but any contact information may be out of date. The statutes treat these objects differently than those with no such documentation.

6. For the objects with a named source, follow the statute’s notice provision.

If an object has a known source, but no other documentation, the presumption should be that this was an undocumented loan.

Obviously, if there is documentation of a loan, but no up-to-date contact information, this object should also be presumed to be a loan.

For such objects, each statute provides a process for terminating the loan by providing some form of written notice with documented attempt at delivery.

If this process succeeds in “waking up” the lender, the museum can then proceed to deal directly with the lender – either securing a deed of gift to transform the loan into a gift or, if the museum does not wish to keep the object, arranging for its return. At this point, statutory process is superseded by the more customary application of tact and persuasiveness needed in dealing with potential donors.

7. For objects with no known source, or a source who cannot be found, proceed with published notification.

The best approach, of course, is to succeed in actually contacting the source of the object. But if this fails, each statute provides a process for “notice by publication.” This is a long-standing legal practice of providing notice to unknown persons by publication (usually in the form of an advertisement) in a widely-read newspaper. Each statute specifies what the advertisement must contain, and where it must be published.

The only ambiguous part of the statutory requirement is how detailed a description of the object must be included in the ad. This has been the most frequent question that has come up in workshops on these statutes. Unfortunately, the statutes do not provide any detailed requirements for a “description,” nor are there any court cases or state regulations to provide guidance.

Remember that the purpose of the advertisement is to provide notice and alert a possible owner that they should contact the museum for further information. It does not have to contain all the detailed information a museum may have regarding an object. Also keep in mind that longer descriptions entail greater advertising expense – perhaps not a major concern for one object, but an important factor if you are seeking to “clean up” the documentation for all the undocumented objects in your collection. My own advice is to at the very least provide the detail listed in your inventory listing.

Provide in the ad a clear and easy way for someone to acquire additional information. Nothing prevents a museum from providing additional information and photos on its website, or to those who inquire directly about a specific object. You need to strike a balance between giving adequate notice to legitimate owners/lenders/donors, without offering so much detail that it invites con artists (although admittedly I have not yet heard of con artists seeking to claim such objects).

8. Respond to inquiries according to a procedure planned in advance.

Depending on your type of museum and your abandoned objects, you may receive very few inquiries or quite a number. In any case, it is crucial that you plan in advance how to handle all such inquiries.

Treat general inquiries about “what is happening at the museum?” not as a nuisance but as an opportunity to educate supporters about the museum’s efforts to improve the documentation of its collection. Tell them how important the project is to fulfilling the museum’s responsibilities as trustee of its collection. Sometimes such general inquiries provide an opportunity to renew ties with a supporter who has become inactive.

Treat claims of ownership in a considerate, thoughtful, but also careful manner which has been planned in advance. At the very least, ask for any documentation the claimant may have, which could be photos, correspondence, or even a formal agreement which is no longer in the museum’s records. The entire purpose of notice by publication is to notify an actual owner, so do not be disappointed when the process succeeds, and an actual owner comes forward. At this point, the object should be returned to its owner, unless the owner chooses to donate the object, and the museum is willing to accept it.

9. Require clear documentation from anyone claiming as an heir of an owner.

A claim may be made by an heir of the original owner who delivered the object to the museum. Require the heir to provide clear documentation that they are not only “an heir” but are “the heir” to the object in question. This need not be a bequest of a specific object; it could, for example, be documentation that the owner’s probate estate transferred title to “all personal property” to the claimant/heir. This may be a situation where it is wise to consult an attorney to review the documentation. This may seem overly rigorous, but it serves two purposes: fulfilling the museum’s obligations as trustee of objects in its care, and protecting the museum from a later claim by another heir.

If there is more than one heir claiming ownership, in no circumstances decide between them. The museum should never try to act as a probate court in deciding between two rival claimants. The burden should be on the claimants to resolve their dispute by negotiation or litigation. The museum should simply retain and care for the object until it is presented with a legally-binding document determining title, such as a binding agreement among the heirs, or a court order.

10. Carefully document the process for each object.

If no legitimate owner appears, then at some point under each statute the museum will have title to the object. Remember that this title arises from the fulfillment of several requirements: the time of possession, attempts at mailed notice, notice by publication, and a waiting period following publication. Each of these steps should be documented as part of the file for each object.

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Gil Whitten can be contacted at gilwhittem@aol.com.