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November 7, 2019 by Jonathan M. CarrilloDownload PDF


TAKING POSSESSION THROUGH REPLEVINJonathan M. Carrillo

It makes sense for lawyers and laymen to associate wrongful possession of another’s property with the criminal code since taking possession of someone else’s property often consists of theft. Many lawyers and laymen are surprised to learn that there is a centuries old civil remedy for retrieval of a person’s wrongfully possessed or withheld property. Indeed, one of the oldest legal actions in common-law, dating back to the 14th Century, is an action for replevin. Although many practitioners in New Jersey seem unaware of this cause of action, it is a legal remedy that practitioners should familiarize themselves with.

Put simply, a replevin action seeks the return of personal property wrongfully taken and for compensation for any resulting loss. In New Jersey, replevin is governed by both statute and court rule.

N.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.” 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 tortuously, 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).

R. 4:61-1 is the mechanism through which a party obtains relief under N.J.S.A. 2B:50-2. R. 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. 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”).

Thus, replevin allows for retrieval of property under different circumstances beyond what most people would consider theft or stealing. It is a flexible and expedient cause of action that is especially effective in situations where the underlying property is unique or priceless. In practice, it often makes sense to file this action in Chancery and combine it with an Order to Show Cause seeking temporary restraints. This combination works well because it accelerates the process and can help protect the property from damage or destruction.