Recovery of Goods
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Alison Ward in August 2018. |
The right to take or keep property depends on the validity of the contractual or legal right claimed. If someone wrongfully took or kept property, the rightful owner of the property has a cause of action for the return of the goods.
Client problems
- Secured creditor has repossessed property belonging to the client that was not subject to a security agreement.
- Court bailiff has seized property from a judgment debtor that actually belongs to the client, who is not a judgment debtor.
- Client has lent property to someone, and the other person will not give it back.
- Someone has taken the client’s property and will not give it back.
Summary of the law
In general, when someone takes or keeps someone else’s property, the person taking or keeping the property must have a legal right to do so. The owner of the property usually has the right to attempt to recover it or, if recovery cannot be carried out peacefully, to get a court order for the return of the property.
A range of circumstances give legal rights to take or keep property; those circumstances are discussed throughout this publication. For example, secured creditors can repossess property that is the subject of a security agreement when the debtor defaults on payment, court bailiffs can seize the assets of a judgment debtor under an order for seizure and sale, and repairers have lien rights to keep the chattels (personal, moveable possessions) of a debtor until payment is made for the repair services.
The legal right to take or keep property
Determining the legal right to take or keep property can be relatively straightforward, such as when property is lent to a friend or relative. Without a contract or understanding about how long the friend or relative can keep the property, the law usually says that the owner can demand the return of the property whenever they wish.
Another example is when someone claims that property taken from them is actually owned by a third party. This issue can arise, for example, when a court bailiff seizes assets from a judgment debtor, and a third party claims that the property seized actually belongs to them. If that is true, the third party is entitled to the return of the goods.
Other instances, such as those in which creditors are involved, can be more legally complicated. Basically, the right to take or keep the property depends on the validity of the contractual or legal right claimed. For example, in the case of security agreements, it must be clear that the debtor has defaulted and that the goods in question are subject to the security agreement. The chattels of a debtor cannot be repossessed if the debtor is not in default or if the security agreement only covers a vehicle (and not other chattels) owned by the debtor.
Remedies for the return of goods
If it is determined that someone wrongfully took or kept property, the rightful owner of the property has a cause of action for the return of the goods. Both the Small Claims Court and the Supreme Court can make orders for the return of goods. The courts may also award damages, in addition to the return of the property, for the inconvenience of having had the property taken.
There is an additional interim remedy available to parties who have had property wrongfully taken. Under section 57 of the Law and Equity Act, Small Claims Rule 17(18), and Supreme Court Civil Rule 10-1, the courts can make an immediate order for the preservation or return of goods, pending a final disposition of the case. This means that the person making the claim may be able to get an immediate order for the return of the goods, on their promise to hold the goods until the matter goes to trial — if it comes to that. Consult a lawyer about the process and the likelihood of success with interim applications.
Information gathering
Gather and confirm all information about the circumstances leading up to the goods being taken, including copies of any communication between the parties.
Solving the problem
There are two main situations in which clients seek the recovery of goods:
- when goods have been lent to, left with, or taken by friends or relatives who will not return the property
- when goods have been taken or kept by someone, such as a creditor, who is claiming a legal right of possession
In either situation, be careful in your fact gathering. In particular, look for details that involve the issue of legal justification. As noted above, there are a range of instances that may make the issue legally complicated and that require consultation with a lawyer.
If a party is improperly keeping property, a first step toward resolving the problem should be to approach the other side to demand its return, followed by court action (in Small Claims Court, if the value of the property is under $35,000) if necessary. Also consider an application for the interim recovery of the goods. If an application for interim recovery is successful, the other side may well abandon the claim to possession and the matter is resolved.
Related topics and materials
The recovery of goods between separated spouses is a related issue. Consult a lawyer for an opinion on what rights are available to spouses and what assistance the local police may provide in enforcing recovery attempts.
See the other sections on legal actions:
See related topics:
- Bailiffs, Court Bailiffs and Sheriffs
- Enforcing Judgments Against Chattels
- Repairers' Liens
- Security Agreements
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