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Remedies for Violations of Property Rights

A property right means nothing if you can’t enforce it. If you have the right to exclude others from your land but have no power to actually do so, you’re practically no better off than if you had no such right.

Enforcing property rights is what really makes them rights. Even if there were no laws at all, people could take possession of things, use them, give them to others, and do their best to exclude others from taking them away. Property law essentially offers the force of the government to help exclude invaders and specifies the conditions on which the government will do so.

Therefore, fully understanding and describing a property owner’s rights in relation to a thing requires consideration of both the right and the remedies, which are the ways the law enforces that right. Invoking the power of the government to repel an invader is very different from merely obtaining financial compensation from the invader, for example.

There are different kinds of remedies available for different kinds of violations of property rights.

Common law forms of action

Long ago, different common law forms of action evolved to address different kinds of injuries to different kinds of property and to provide different remedies. Almost all U.S. jurisdictions have abolished the old common law forms of action and now provide for a single form of civil action.

However, you still need to be familiar with the predominant common law forms of action. Some of the old labels may still be used to identify claims for relief, some differences in claims and remedies persist, and you may read older judicial opinions that use the old labels.

Real property

Real property is called “real” because of the common law actions that protected and preserved the owner’s physical possession of land instead of just providing compensation for the land taken by another. Centuries ago in England, the action of ejectment evolved and took the place of various earlier real actions. Ejectment entitled the owner to have a wrongful possessor ejected and to regain possession.

If the wrongdoer entered the land but didn’t take possession from the owner, the action of trespass provided a damages remedy. And if a wrongdoer didn’t enter the land but merely interfered with its use and enjoyment, the action of trespass on the case (or just case) likewise provided a damages remedy.

Personal property

A “personal” action was an action for damages rather than a judgment directly affecting possession of the property itself. Long ago, there were no “real” actions for property other than land, so such property came to be called “personal property.” Over time, however, actions developed to recover possession of personal property rather than to just obtain damages. Some of the actions related to personal property were

  • Trover: An action for damages from someone who wrongfully took personal property

  • Replevin: Originally only an action to recover chattels wrongfully seized by a landlord for breach of a tenant’s duties, it evolved to allow recovery of any wrongfully withheld personal property — or damages if the defendant wrongfully disposed of the property

  • Detinue: An action for wrongful withholding of possession of chattels, in which the defendant had the choice of returning the chattels or paying money damages

  • Trespass: An action for damages resulting from interference with land or chattels

Legal and equitable remedies

There’s another old remedial distinction that you should know: the distinction between legal remedies and equitable remedies. Property remedies developed in two different court systems in England. The two basic legal remedies available to a plaintiff were damages and restitution:

  • Damages: An award of money calculated to compensate the plaintiff for injury to or loss of property

  • Restitution: An order requiring the defendant to return property to the rightful owner

The English Court of Chancery, on the other hand, offered some remedies that weren’t available in the common law courts. The English Court of Chancery was a court of “equity” rather than “law,” so its remedies were known as equitable remedies.

Even though modern courts may grant all the legal and equitable remedies recognized by the law, the terms are still used to distinguish types of remedies.

Here are some important equitable remedies to know:

  • Injunction: This is an order by a court preventing someone from interfering with another’s property. Such an order may prohibit someone from doing something, require someone to do something, or both. Today an injunction is generally available if the threatened harm by the defendant would be irreparable or if calculating the harm in monetary terms and awarding compensating damages would be difficult.

  • Specific performance: Specific performance is a particular kind of injunction that compels a party to perform a contract. Like injunctions generally, a court orders specific performance only when an award of damages would be inadequate.

  • Quieting title: Quieting title is a judicial declaration about the validity and state of a person’s title to land, resolving disputed claims about interests in the land.

  • Rescission: This is a judicial order that cancels a contract and restores the contracting parties to the position they were in before entering into the contract.

  • Reformation of written instruments: This is a judicial order that changes the terms of a written agreement to be consistent with the parties’ actual intentions.

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