Replevin - Explained
What is Replevin?
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What is Replevin?
Replevin, also known as a claim and delivery, is a legal recourse that allows a person to obtain any personal property that was wrongfully claimed. The remedy is given before the court pronounces the final judgment and the wronged party is also compensated for any losses incurred due to the illegal act.
How Does Replevin Work?
Replevin actions are quite common and fall into two categories. These include;
- A person seeks immediate possession of the property
- The party filing the claim decides to wait for the adjudication of final rights.
In the former scenario, the law requires the creditor to post a bond, which seeks to protect the defendant from wrongful detention. This remedy is a very useful and powerful weapon against the person holding the property unlawfully since the holder cannot use the property while the case is still ongoing. This pressures the person in possession of the property to settle the issue quickly. The Replevy- which is the process through which the owner takes to secure the possession of the property by offering a form of security. This security is mainly given by the person prosecuting the action and helps to ensure that the goods will be returned in the event that they lose the case. The suit of replevin- In common law, the action taken to recover property that has been wrongfully seized would be a case for the wrongful interference of property but this does not offer an immediate recovery of the seized goods. Replevin is useful when the person claiming a greater right to the property is unable to take the property back by themselves. If a person can do so without filing a suit, this is referred to as repossession of property. In Wisconsin and Louisiana, for example, if a person finances a vehicle and fails to make payments as agreed. The law does not allow the lienholder to repossess the car but they must appear in court to get a replevin order. Many people will file a replevin case but choose not to gain immediate possession of the wrongfully-held property. Instead, they choose to file the replevin suit without offering any form of security. The defendant will then be required to attend court proceedings once the service of process is achieved so that the court can adjudicate which party has rights to possession of the property. How does the court determine the rightful owner of the property? The plaintiff creditor will be required to offer business records and testimonies that prove the defendants obligation to pay and their subsequent inability to pay. Once satisfied, the court issues a writ of replevin served to the sheriffs deputy who work hand-in-hand with employees of the creditor to repossess the property in question. The role of the law enforcement officers is to ensure that the creditors property is transferred in peace and that the borrower does not present any threat to the creditor. Once the property is repossessed, the creditor can dispose the property and use the proceeds to finance the debt owed. In other instances, a replevy can prove useful to avoid any damages that can occur when something like a public utility meter is used continuously. For non-payment of public utilities such as a meter, the physical property will still sit on your premises so that it can be reconnected once you complete payment. The connection can also be activated if the person owing the bill sells the premises to another individual who does not have any bills to the creditor. In the event that a person reconnects the utility unlawfully and continues getting the services, one can seek replevin for repossessing the meter to prevent this action.
Replevin in the International Context
In McGregor v. McGregor (1899), the British Columbia Supreme Court judge Irving J wrote: An action of replevin can be brought where goods have been wrongfully distrained or where goods have been otherwise, i.e. otherwise than by distress, wrongfully taken or detained. The word wrongfully is applicable to both cases. Wrongfully ... imports the infringement of some right, and any invasion of the civil rights of another is in itself a legal wrong, and the appropriate action for the violation of the legal right unconnected with contract is an action for tort. The early history of replevin action in England is traced (as) ... "The nature of the complaint in the action was for a tortious taking of the goods." Our British Columbia replevin action, which is wider than the English, gives the right to replevy to the party who could maintain trespass or trover. It is given, as it were, supplementary to, or in aid of, the remedy which those actions afford; but as all three actions, trespass, trover and replevin are classed ... as actions of tort, I think the action under our British Columbia statute is for the tortious taking or tortious detention of goods. Similar provisions that show replevin when an individual defaults can be found in the Civil Code of Quebec[ and St Lucia (arts. 1888 et seq.) that were mainly deduced from French law. Other places where such laws are in force include Mauritius and can also be found in the Spanish Civil Code (art 1922).
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- Writ of Attachment
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