§ 20.02 DEFENSE OF PROPERTY

• Jurisdiction: United States

§ 20.02. Defense of Property

[A] General Rule

Despite the high value placed on property rights in Anglo-American society, the law prefers the resolution of property disputes by nonforcible means, including the use of judicial orders. Forcible self-help is discouraged. Nonetheless, in narrow circumstances, a person may use force to protect his property.

As more fully examined in subsection [B], a person in possession of real or personal property is justified under the common law and modern statutes in using nondeadly force against a would-be dispossessor if he reasonably believes that such force is necessary to prevent imminent, unlawful dispossession of the property.¹ Subject to one exception considered in subsection [B][6] below, once a person is dispossessed of his property, his right to use force to defend his interest in it is extinguished.

[B] Clarification of the Rule

[1] Possession Versus Title to Property

The privilege of defense-of-property entitles a person to use necessary force to retain rightful possession of, as distinguished from title to, personal or real property.² For example, assuming the other aspects of the defense are satisfied, D, a mechanic repairing X's car, may use nondeadly force against V, a thief, in order to prevent V from taking the vehicle. Similarly, T, a tenant in an apartment, may use nondeadly force, if necessary, to prevent L, the owner of the property, from wrongfully evicting him from the premises.

[2] Necessity for the Use of Force

A person may use no more force than reasonably appears necessary to defend his possessory interest in the property. Some early common law courts further specified that a person could not properly use force until he sought to avoid a physical conflict by requesting desistance by the would-be dispossessor.³ A request was unnecessary, however, if it would be futile or would jeopardize the defender's or another person's safety (e.g., the wrongdoer attempts to take property by force rather than by stealth). And it also follows from the necessity requirement that nondeadly force should not be used if one can seek assistance by law enforcement agents already on the scene.⁴

[3] Deadly Force

Deadly force is not permitted in defense of property, even if it is the only means available to prevent the loss.⁵ However, the right to use nondeadly force to protect property is sometimes transformed into an independent right to use deadly force in self-protection or defense of a third party. For example...