How do I get my property back?
At least once a week someone comes into my office asking a “how do I get my stuff back” question. For example, Judy and John are dating and Judy has several items of personal property at John’s house — like clothes, jewelry, CDs, etc. John and Judy have a terrible breakup resulting in John’s refusing to allow Judy to retrieve her property from his house. Typically, Judy will call on a Sheriff’s deputy or policeman for help. Judy is shocked when the officer tells her that there is nothing he can do because this is a “civil” matter. Judy leaves cursing, thinking that the officer is lazy and just refusing to do his job.
In this case, the officer is right. If someone else is in possession of your property and refuses to give it back, law enforcement really can’t help you until you have a court order instructing them to help you retrieve your property. To get a court order, you have to file a lawsuit against the person holding your property. The legal name for this type of lawsuit is “Detinue.” In a detinue action, you are requesting that the court order the defendant to turn over specific personal property or its value, plus the cost of any damage done to the personal property.
In order for a plaintiff to recover in a detinue action, he must prove that (1) at the time the lawsuit was filed the plaintiff had an ownership interest in the personal property in question; (2) the plaintiff has the right to immediate possession of the personal property; and (3) the defendant is in wrongful possession of the property.
When I explain this to people, they are usually surprised. In fact, most people think that there is a “quick fix” for his type of problem. Judy will say, “I don’t need a law suit, I just need you to draw up some ‘papers’ for me to go get my things.” Contrary to popular opinion, there are no such magic “papers” a lawyer can draw up. Then Judy will say, “Do you mean that John can just keep my things and I have to pay a lawyer and court costs, as well as wait several weeks or months for a trial date before I can get them back?” Yes, this is what I mean. The simple truth is that there is just no other way to legally work this problem. If Judy says these things are hers, and John either says they are not, or that he just won’t give them back, the judge is the only person who can decide (1) whose story is right and (2) what to do about it; neither the Sheriff, the Police Chief, nor a lawyer have that ability.