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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.

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.

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.

Would there be anything illegal about that situation?

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.

Volker Siegel
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Jude
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    I'm worried about Bob being aggressive, you may want to look for advice against his possible backfire before doing this. – Bernat Sep 06 '18 at 06:35
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    Possible duplicate of If someone steals something of mine, is it legal to steal it back? –  Sep 06 '18 at 07:01
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    Which country do you live in? Laws vary by location. – Angelo Fuchs Sep 06 '18 at 11:02
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    I know of at least one case here in Oklahoma where someone attempting to do something similar ended up on trial for murder. A buddy who was helping him was shot to death by the property owner, and due to the laws here (and in some other states I understand), that actually put the victim's accomplice, not the shooter, on the hook for the death. – T.E.D. Sep 06 '18 at 13:59
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    @T.E.D. That only applies if you're committing a crime. For example, if you're knocking off a convenience store and the clerk kills your partner in self-defense, you can be tried for murder in some states. Since what is described in the question is not a crime, that would not apply here. – reirab Sep 06 '18 at 15:40
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    The answer depends on jurisdiction. For instance, in Sweden, this would be illegal and the crime would be labeled självtäkt. There would however be an exception if the stolen property was retaken within 24 hours of the theft. – jkej Sep 06 '18 at 16:01
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    Is asking the parents to hand over the stolen goods not an option? In case they give it back, the question whether it's legal or not to steal it back doesn't even arise. – Damon Sep 07 '18 at 20:32
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    I don't understand how if you go to their house and ask for it back (as outlined in the question) that would be classed as stealing (as described in the title)? – Lamar Latrell Sep 09 '18 at 06:49
  • I edited out the "lets say his name is", because it's normal and expected that you use other names. And thanks, that question is very interesting indeed! – Volker Siegel Sep 09 '18 at 11:07
  • can you prove that you are the rightful owner of the guitar? Do you have receipts etc? i.e. in the event they claim you stole it from them, do you have evidence to defend yourself or is it your word against theirs? – JeffUK Feb 11 '22 at 17:16

5 Answers5

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No. This would not be illegal.

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.

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".

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.

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.

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.

ohwilleke
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    Is the word "permanently" important in the last paragraph? Say Bob was planning on giving the guitar back in 20 years for example. – David Mulder Sep 06 '18 at 06:23
  • @DavidMulder Don't know about the US law. But German law is similar in that theft involves a combination of permanent deprival of the owner's possession with at least temporary possesion of the thief. So when you intend to never give it back, it doesn't matter if you don't want to keep it. And I would consider 20 years a time long enough to qualify it as permanent removal. Shorter timeframes might be different, depending on the individual case. – Sefe Sep 06 '18 at 07:44
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    @DavidMulder It might be technically possible, but it would require Bob to prove that the return was going to happen and that the time he was keeping it for was reasonable. In practise that's not going to happen. – Graham Sep 06 '18 at 07:49
  • @DavidMulder: While there may be a difference between permanent and temporary theft (punitively speaking), the latter is still theft. Otherwise, joyrides would not be illegal if you can reasonably argue you intended to bring the car back afterwards. – Flater Sep 06 '18 at 13:31
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    @Flater In the UK there are specific laws covering theft of a motorvehicle because of the joyride situation. I am not a lawyer but my understanding is that standard theft laws wouldn't cover it for this exact reason. – Tim B Sep 06 '18 at 15:13
  • Flater; "theft", almost everywhere, has to include an intention to permanently deprive. Precisely for that reason, TWOC, furtum usus, breach of fiduciary duty by borrowing a billion from your employer for ten seconds (time enough to make a killing on some markets) and other borrowing-related crimes have to be carefully defined by the relevant legislature. See Is borrowing without consent illegal?. – Tim Lymington Sep 06 '18 at 15:57
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    There are multiple kinds of acts and intents that can constitute theft. https://codes.findlaw.com/co/title-18-criminal-code/co-rev-st-sect-18-4-401.html Permanently is roughly equivalent to "indefinitely" in this sense. Also, sometimes the use of something for a period of time is something that can itself be stolen. Thing of value is also often broadly defined. https://codes.findlaw.com/co/title-18-criminal-code/co-rev-st-sect-18-1-901.html – ohwilleke Sep 06 '18 at 17:20
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    Make sure you can demonstrate ownership, perhaps through a receipt or witness testimony, in case Bob goes crazy and accuses you of theft. He may even have taken photos of him playing it to present as evidence that he is the owner. This isn't a problem with autos because they have titles. – Chloe Sep 06 '18 at 17:38
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    "If you did this with the assistance of a law enforcement officer..." Well, that seems like a really good idea. – Don Branson Sep 06 '18 at 18:20
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    @DavidMulder - He is permanently depriving you of the enjoyment of your item for the duration that he has it. – Richard Sep 08 '18 at 18:46
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    @Richard "permanently... for the duration that he has it" is a contradiction in terms. – David Richerby Sep 09 '18 at 14:11
  • @DavidRicherby Not really. And, at least some places interpret the law that way. The issue is that permanent can modify different things. – ohwilleke Sep 09 '18 at 14:47
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    @DavidRicherby - If I own a thing, I get to enjoy it every day. If someone takes it and deprives me of the use of it for a day, I'll never get that day of enjoyment back, albeit that's a lesser crime than depriving me of the item permanently – Richard Sep 09 '18 at 14:55
  • @Richard By that argument, they've also permanently deprived you of having-the-item-for-that-day. If that's the interpretation, then "permanently" is meaningless. – David Richerby Sep 09 '18 at 15:18
  • @DavidRicherby - You'll never get that day back, hence permanent. Imagine that each day of enjoyment is worth a dollar to you. By taking it without your permission, they've taken your dollar. – Richard Sep 09 '18 at 15:19
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    @DavidMulder I'm pretty sure "I was going to give it back later" is not recognized as a legal defense against theft in any court on this planet. – Shadur-don't-feed-the-AI Sep 10 '18 at 10:06
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    @DavidRicherby"then "permanently" is meaningless." Not entirely. The sentence permitted and fines for theft are a function of the value of the thing stolen. Two days fair rental value would ordinarily be much less in value than the value of the entire good taken. So, while it wouldn't be a perfect defense, it could turn a mid-grade felony into a minor misdemeanor, and dramatically reduce the fines and restitution awarded. – ohwilleke Sep 10 '18 at 22:25
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    @ohwilleke Sentencing is jumping the gun: we're still defining the offence. Richard is arguing that, by taking something of yours, I have permanently deprived you of the status of having possessed that item on 10th September, 2018. By that argument, any deprivation is permanent, so "deprive" means exactly the same thing as "permanently deprive", so "permanently" carries no meaning. – David Richerby Sep 10 '18 at 22:47
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    @DavidRicherby It is not jumping the gun, it is a question of which offense you are guilty of theft 1 or theft 6. – ohwilleke Sep 10 '18 at 22:54
  • Related: Temporary theft, or, removing someones property to deliver it to their home or office – gerrit Jun 01 '20 at 19:52
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Ohwilleke's answer is good, but there is a further point to consider.

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.

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.

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.

Graham
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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.

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.

AXH
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    According to this site https://www.lawteacher.net/cases/r-v-turner-no-2.php he was trying to avoid paying the garage and "... it was essential for the prosecution to show that T had acted dishonestly ...". It seems the questioner is not behaving dishonestly though and has the right to deprive Bob of the guitar so 2(1)(a) would apply in this case. – patstew Sep 06 '18 at 16:21
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    But the garage case is fundamentally different because the car was given away voluntarily. You haven't made any argument why it applies here too. – DonQuiKong Sep 06 '18 at 16:25
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    Also, the garage would have a lien for its services in the car, which is a property interest of its own. – ohwilleke Sep 06 '18 at 17:07
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    I think that possession and control, would generally mean lawful possession and control (but don't have UK case law on point). – ohwilleke Sep 06 '18 at 17:22
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    I'm not from the U.K. but I'd ask them to go get it and hand it to me standing outside. – Mazura Sep 06 '18 at 17:49
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    I don't think the car is a comparable case. In the US, when you take your car to a mechanic, they have a "mechanic's lien" on the car, i.e. the right to keep the car until you pay the repair bill. If you took it back without paying the bill, that's theft both legally and morally. If you paid the bill and they refused to give the car back, that would be different, but you'd be better to go to court to resolve that than take the matter into your own hands. (Assuming you can get to the court house without your car!) – Jay Sep 08 '18 at 22:19
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In Germany, this would most likely be illegal, pursuant to Art. 858 BGB:

(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).

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

Markus
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    @Nij no, that's not correct. In German law there's possession (Besitz) which means whoever has the thing in their control and ownership (Eigentum) which is who owns it. I remember reading that stealing something back isn't allowed here, too, exactly because possession and ownership are divided. – DonQuiKong Sep 07 '18 at 03:19
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    Well, that's just messed up, but okay. –  Sep 07 '18 at 04:51
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    @Nij It's not messed up if you take the line that "taking justice into your own hands" is generally not legal. If somebody steals from you, the correct course of action is to sue, not to steal it back. – xLeitix Sep 07 '18 at 11:28
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    @xLeitix : and the usual response of police in cases of stolen property of relatively small value is to tell you to not waste their time with such trivialities. – vsz Sep 07 '18 at 11:53
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    @Nij I'm not sure the conclusion on this case is correct, because art. 858 bgb (2) should apply making the possession erroneous as it was obtained in bad faith which makes 858 (1) not apply. The difference between possession and ownership applies for lending etc and is just to be able to differentiate in wording – DonQuiKong Sep 07 '18 at 12:11
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    @DonQuiKong: Your distinction between Besitz and Eigentum is correct, but BGB 858 explicitly states Besitz, which admittedly sounds absurd. However, it's not as bad as one may think, it also states "durch verbotene Eigenmacht erlangter Besitz ist fehlerhaft" which means that Bob's possession which happened via theft isn't valid (and thus arguably not subject to sentence 1). So basically, had you given the guitar (making it legitimate possession), you wouldn't be allowed to take it against Bob's will. – Damon Sep 07 '18 at 20:39
  • @Damon that's exactly what I meant with my comment. Erroneous is probably a bad translation for fehlerhaft, but it's what I meant. – DonQuiKong Sep 07 '18 at 20:41
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    @vsz that's why you go to court, not the police ;) – DonQuiKong Sep 07 '18 at 20:43
  • As I have understood it, also in Sweden it might be a crime taking your own property back from someone who has stolen it. – md2perpe Sep 12 '18 at 13:12
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I would personally suggest asking the family to hand you the guitar - rather than you going in and getting it.

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.

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.

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

UKMonkey
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  • And the downvote is because....? – UKMonkey Sep 10 '18 at 14:38
  • This seems even more reasonable, since the OP won't be asking permission to access the premises. It's just one single request: handing back what's rightfully owned by the OP. – CPHPython Sep 10 '18 at 15:04
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    @UKMonkey The downvote wasn't mine but my guess would be that it's because your post says nothing about the law. Your post seems to be more of an interpersonal skills answer than a law answer. – David Richerby Sep 10 '18 at 22:49
  • @DavidRicherby I agree, but given the question doesn't include a country, let alone province or state incase there are bylaws that might apply - and this is the only answer that can safely be applied to all countries. – UKMonkey Sep 12 '18 at 14:04
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    But, by telling them that you lent it to him (when in fact he stole it from Joe), you're likely making it much more difficult to prevail if the parents decline your request and you have to pursue formal legal action. – Dan Henderson Dec 17 '20 at 18:00