Possession under property law is a fundamental concept, and for the most part if we have a particular good, or land under our control, we would generally consider the property ours. However, what happens if there are multiple claims to property? How does the law deal with competing claims to possession? Possession is considered as such an essential property right, that a person who is found to be wrongly interfering with another person’s right to possession, will be committing a breach of duty under the law. The most common torts in regards to interference with possession are trespass, conversion and detinue. Each tort has different elements, and this article will give readers a brief overview of how a breach may occur in regards to the various torts.
The tort of trespass
Most readers would be aware of what trespass constitutes, and you would be correct in your assumptions, because trespass is indeed the wrongful interference by one person, with the property or goods belonging to another party. In order for trespass to be considered wrongful, it must be done voluntarily, is unauthorised, and the trespass must be direct.
Perhaps the most fundamental aspect of trespass is that there must be a direct link between the actions of the person committing trespass, and the interference with the other person’s property or goods.
The tort of conversion
Trespass as a tort can be committed against property and goods. However, in contrast, the tort of conversion can only be applied to goods. Conversion involves a voluntary act, causing interference against another person’s goods. Furthermore, conversion can also be committed even when a person has no intention to commit the tort.
Conversion – unlike trespass – does not require a direct link to be established for a person to commit the tort, as an indirect link is considered sufficient for a finding of a breach under certain circumstances.
The final element of conversion is if the person who is committing the tort, purports to deal with the goods that belong to another party for their benefit which may involve the selling, giving away, or lending of goods in which the tortfeasor has no legal title over.
The tort of detinue
Similar to conversion, detinue is also a tort that can only be committed against a good, rather than property.
When someone commits a tort of detinue, they are considered to be wrongfully withholding goods from a person that has an immediate right of possession.
The other element of detinue is that the person committing the wrongful act is also denying the innocent party rightful possession of their property, and with full knowledge of the person’s rights to their goods. The final element of detinue is if the tortfeasor fails to deliver the goods as required by law.
Can a person commit more than one breach of duty?
There is a possibility that a person can commit all three torts at once in regards to the same property. However, generally speaking, the breaches of trespass, conversion and detinue are different types of wrongs that have differing elements in order for the tort to be considered a wrongful act.