criminal-law property theft ownership
Stealing my own property back?
<p>I have a guitar that I let my friend Joe borrow on the consensus that he would return it in a couple of days. Joe is a mutual friend of my ex Bob. </p>

<p>Bob stole the guitar from Joe once he found out it was mine, and is now not allowing either me or Joe to get it back. </p>

<p>Since I know Bob's family, they would gladly allow me inside their house. If I were to go to Bob's house while he was at work (for my own safety as Bob is aggressive,) knock on their door and ask his family if they would allow me to retrieve my guitar.</p>

<p>Would there be anything illegal about that situation?  </p>

<p>I wouldn't be breaking and entering, and from what I have read there are no laws against taking your own property back as long as you do not commit another crime such as trespassing/breaking and entering while doing so. </p>

<p>No. This would not be illegal. </p>

<p>You are not trespassing or breaking and entering since you have permission to be on the premises, and you are the rightful owner of the guitar so you are not depriving him of property that belongs to him.</p>

<p>If you did this with the assistance of a law enforcement officer, rather than Bob's family, without a court order describing the property to be retrieved, this would be called a "civil assist".</p>

<p>If the guitar were collateral for a loan, it would be a self-help "repossession" (a.k.a. "repo") authorized by the Uniform Commercial Code if it could be accomplished without a breach of the peace, and it would not require a court order.</p>

<p>If you did this pursuant to a court order the case you brought to retrieve the guitar would be called a "replevin action" and you would also need to obtain a "writ of assistance" to authorize a trespass in the presence of law enforcement to retrieve the guitar.</p>

<p>Also, Bob would still be be guilty of the crime of theft of the guitar, even though you got it back, because he took it with an intent to permanently deprive you, its owner, of the property that belongs to you. You could also probably sue him for conversion or "civil theft" in some jurisdictions, but your damages would be nominal except for punitive or statutory damages under a civil theft statute, because you ultimately got the guitar back, and so you suffered only minimal economic harm.</p>

<p>Ohwilleke's answer is good, but there is a further point to consider.</p>

<p>You say that Bob is your ex. Are there grounds for him thinking that this guitar was a joint purchase while you were a couple, and hence that he has a right to it? If it could be a joint purchase, you would not be stealing it back - but nor is he. You could potentially end up being sued for possession of the guitar. If it was a joint purchase, you might consider paying him for his half.</p>

<p>This should be a question that Bob's family will ask you anyway.  Can you show that the guitar is genuinely yours? If you can, or if they know the guitar is yours, then great. If not, you'll hopefully need to convince them before they'll hand it over. (I say "hopefully" because they'd be stupidly naive not to.) There's also a risk they'll phone Bob to check, of course.</p>

<p>If there's dispute over who owns the guitar, you could sue him. This isn't necessarily as painful as it sounds - in England we have the Small Claims Court which is designed for cases like this, with minimal cost to both sides, but your country may vary.</p>

<p>In England and Wales, it is possible that you could be found guilty of theft. The "property belonging to another" includes where somebody has "posession and control" over somebody else's property.</p>

<p>This was shown in R v Turner (No 2) [1971] 1 WLR 901, where a defendant was convicted of stealing his own car from a garage where he had left it for a service. It was considered that, since the car was in the control of the garage, it was property belonging to them for the purposes of s1 Theft Act 1968.</p>

<p>In Germany, this would most likely be illegal, pursuant to <a href="https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p3581" rel="nofollow noreferrer">Art. 858 BGB</a>:</p>

<blockquote>
  <p>(1) A person who, against the will of the possessor, deprives the
  possessor of possession or interferes with the possessor’s possession acts, except where the deprivation or the interference is permitted by law, unlawfully (unlawful interference with possession).</p>
</blockquote>

<p>The next section does not give the owner an exception to reclaim the property from the actual owner, because the item was not <em>taken</em> by unlawful interference.</p>

<p>I would personally suggest asking the family to hand you the guitar - rather than you going in and getting it.  </p>

<p>Just tell them that you lent it to him but you need it back.  If you describe it, I'm sure they'll be happy to get it and hand it to you.</p>

<p>That way there can be no argument that you entered and stole the property; or did anything unlawful; as it's now them handing you the item on the pretence that it was yours to start with.</p>

<p>It sounds though, like the law isn't the part you need to worry about - but this guy who tends to be aggressive.</p>
