Does a Defense of Property Work in Tort Law

Tort law allows for a person to use a certain amount of physical force in order to protect his premises or physical property from imminent harm. A defendant that would normally be guilty of a tort may use defense of property to justify his actions.

Similar to the components of self defense, in order for his or her defense to be successful, the defendant must prove that their property was in, or he believed it to be in, real danger, and that he did not use excessive force in its defense. In order to defend the property, the defendant must show that he is in legal possession and ownership of that property.

The law of torts allows a defendant more freedom in using physical force to protect his dwelling rather than other physical property. Trespassing refers to when an intruder enters a structure or area where he knows he is not privileged to do so.

The owner of the property must first warn the trespasser by asking him to remove himself from the property, unless the owner believes that this request would be useless or dangerous. The owner is then entitled to use force that any reasonable person would use to defend the dwelling.

Deadly force in certain states, may be used if an intruder enters the property and the owner has good reason to believe that this intruder intends to harm him or a family member within the dwelling. This deadly force can only be used if the owner believes the intruder will kill or seriously injure someone. However, deadly force can never be used to protect personal property other than a home.

If a person's car is being stolen, for example, the owner may use reasonable physical force to prevent this, but never deadly force. The defendant must use reasonable physical force, meaning that it is proportionate to the attacker's force or threat of force.

Most tort law, including the defense of personal property, allows the defendant some leeway in making mistakes. If it can be concluded that a reasonable person in the same position as the defendant would act in a similar way, then it does not matter whether the danger was actually present or the defendant mistook the situation.

Defense of property can still be used as a defense to justify the defendant's actions as long as the courts decide that a reasonable person would react in a similar way. If the courts decide, however, that the defendant used more force than was necessary to protect his property, then he will be found guilty of a tort.

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