What the Heck is Replevin?
It’s one of those obscure legal thingies. Does that do it for you?
Nah, I thought not. So allow me to explain. A legal definition first and then we’ll flesh it out.
Replevin is a personal action, ex delicto, brought to recover possession of goods unlawfully taken. Um… okay? “Ex delicto” in turn is just some fancy Latin stuff that means “from a wrong” or “from a transgression.” It is a legal term that indicates a consequence of a tort, though the phrase can also refer to the consequence of a crime. It is often opposed to ex contractu.
Are you getting this?
Okay, this stuff’s a little thick.
A “tort” is an act or omission to act that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. If you ding my car or bonk me on the head, so doing, in addition to nasty owie in my car and a knot on my noggin, may amount to a tort. “Ex contractu” simply means arising from a contract.
Now, let’s stitch this mess together.
Replevin is an action one can take to recover goods that are wrongfully taken. And that taking of your goods amounts to a tort or “injury.” A “good” is, by the way, kind of anything that may comprise personal property. My baseball glove, my wedding ring, my mountain bike and my briefcase are all “goods.” Real estate, however, not being “personal” property, is not a “good” (notwithstanding that owning real estate is probably a good thing).
More formally, replevin is an action whereby the owner or person entitled to repossession of goods or chattels (Geesh! We’ll get to chattels in a sec) from one who has wrongfully distrained or taken or who wrongfully detains such goods or chattels. Replevin is designed to permit one having the right to possession to recovery property in specie from one who has either wrongfully taken or detained the property.
So now it seems we have our hands full with some other ‘splainin’ to do.
“Chattel,” derived from the word “cattle,” is a $10 word for a 5 cent concept. All it really means is something moveable—an article of personal property. It may, however, apply to both animate and inanimate property. In most places, for example, your dog or cat or cow is a personal chattel.
“In specie” is another dressed up word. What it means, specifically, is “in kind” and in this context, it refers to the thing itself. In replying something (yup, that’s a perfectly legitimate verb), you are entitled to recover the thing itself rather than the equivalent value of the thing. If you’ve got my pooch, I’m entitled to the pup’s return. Good boy!
Lastly, what about “distrained?” Me thinks these lawyers talk funny! “Distrain” is the taking as a pledge the property of another and holding on to it until he performs some obligation or… wait for it… until the property is replevied by the sheriff or some other law enforcement official. It is also any detention of personal property—whether lawful or unlawful—for any purpose.
If I haven’t lost you by now, let’s put Humpty Dumpty back together again.
Replevin is a legal action brought before the court. An action is replevin is brought when one’s personal property is either wrongfully taken by another or else wrongfully kept or held on to by another. You bring an action in replevin to recover your stuff. If you are successful and the court issues you an order, a friendly law enforcement officer will execute the order to make sure your stuff gets back to you.
See how easy that was?
But oops, before we congratulate ourselves, there are just a couple of little wrinkles.
How are conversion and replevin different? And how are they alike? Conversion, you may recall from a prior column, is an intentional tort. It is, “taking with the intent of exercising over the chattel an ownership inconsistent with the real owner’s right of possession.” It is the glomming on to stuff that isn’t yours. Its equivalents in criminal law include larceny or theft and criminal conversion. So conversion is the act of taking or wrongfully possessing. Replevin is the way you get stuff back.
But wait, “Isn’t taking my stuff a crime?”
Yeah, it can be. So replevin is the civil side of things. Theft, larceny or other crimes of the same ilk sit on the criminal side of the fence. It should be noted that the “remedy” for criminal conduct is punishment. So if someone takes what isn’t theirs, the real owner may reply the items to get them back. And then The People will decide if criminal prosecution lies as well. One does not necessarily preclude the other.
See? Easy Peasy?
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg, LLC. His practice areas include business & commercial transactions, real estate & development, family law, custody, & divorce and civil litigation.
Mr. Robbins may be reached at 970/926.4461 or at his e-mail address: Robbins@SLBLaw.com.