Writs of Replevin: It's Mine- Give It BackN.J.S.A.
2B:50-1 authorizes “[a] person seeking recovery of goods wrongly held by another” to “bring an action for replevin in the Superior Court.” “If the person establishes the cause of action, the court shall enter an order granting possession.” Id.
Under the plain language of N.J.S.A.
2B:50-1, a plaintiff establishes a cause of action for replevin by showing that the defendant is holding the subject goods wrongfully, or in other words, that the defendant is holding the goods contrary to the plaintiff’s superior right to possession. The replevin action created by N.J.S.A.
2B:50-1 encompasses actions where goods are taken wrongfully or tortiously, and where goods were lawfully taken but are withheld contrary to a superior right of possession—also called detinue. See Voellinger v. Dow
, 420 N.J. Super. 480, 483 n.2 (App. Div. 2011).
Pursuant to N.J.S.A.
2B:50-2 and Rule 4:61-1, a party asserting a claim for replevin may obtain a writ of replevin, possession of the goods, and other relief by filing a motion on three days’ notice demonstrating a “probability” of final judgment. Specifically, N.J.S.A.
2B:50-2 states as follows:
Temporary Relief; On Notice. If the court, after notice and
hearing, and based upon filed papers and testimony, if any, finds a
probability of final judgment for the plaintiff, it may, prior to final
a. grant possession of the goods to the plaintiff; or
b. order other just relief.
Rule 4:61-1 is the mechanism through which a party obtains relief under N.J.S.A.
2B:50-2. Rule 4:61-1 echoes the standard set forth in N.J.S.A.
2B:50-2, that relief may be granted merely by showing “a probability that final judgment will be rendered in favor of the movant.”
“To maintain replevin, the plaintiff must have the right of exclusive possession to the goods in question. He must not only have property absolute or qualified, and the right of possession at the time of the commencement of the action, but he must have the exclusive right of possession.”
Hunt v. Chambers
, 21 N.J.L. 620, 623 (E. & A. 1845). Notably, a replevin claim also requires unlawful detention after a demand for the property has been made. As the Supreme Court noted in Baron v. Peoples Nat'l Bank
, 9 N.J. 249, 256 (1952):
Under our statute there must be an unlawful detention and in that respect the action of replevin is put on the same footing as an action in trover or detinue. There must be an actual conversion or refusal to deliver on demand which is evidence of conversion, before the detention becomes unlawful. But to constitute such conversion there must be some repudiation by the defendant of the owner's right or some exercise of dominion over the chattels by him inconsistent with such right or some act done which has the effect of destroying or changing the quality of the chattels.
A claim for replevin also exists despite the fact that a defendant is no longer in possession of the property at issue. See id.
at 257 (“When one has wrongfully detained property and refused it on demand he is liable in an action in replevin even though it may not remain in his possession when the suit is brought”).