Defense of property is an affirmative defense used by a person in a lawsuit to state that they used reasonable force to protect their property from harm. If the defendant can prove that they injured the plaintiff only because they reasonably believed that their property would be harmed if they did not, then the defendant may not be held liable for damages even though they admit that they injured the plaintiff.

Defense of property is different from other defenses such as self-defense or defense of others because the use of force must be much more limited.

What are the Elements of Defense of Property?

In order to prove a defense of property claim, the defendant has to show that:

  • The force was used against the actual wrongdoer; and
  • Only a reasonable amount of force was used to protect the property.

In a defense of property claim, it is not enough that the defendant reasonably believed that the plaintiff was going to harm their property. Rather, a defense of property claim requires that the plaintiff was about to harm the defendant’s property in some way.

Also, the amount of force that is used against the plaintiff has to be reasonable and it cannot be excessive. Because no amount of property damage is equal to a loss of life, most courts agree that using deadly force is not justified to protect property.

But a defendant may use deadly force against a person who enters their property with the intent to use deadly force against the defendant or their family. This is because this act would fall under self-defense or defense of others.

When Does a Defense of Property Claim Not Work?

If a non-forceful action could have made the plaintiff leave the property, most courts will find that the amount of force used was unreasonable, no matter how small. For example, the plaintiff was trying to steal the defendant’s suitcase and the defendant prevents him by grabbing the plaintiff and throwing him to the ground.

This in turn injures the plaintiff. The defendant could have stopped the plaintiff from stealing the suitcase simply by yelling at him and not using any physical force. In this context, a court will consider the defendant’s use of force to be unreasonable and the defendant will not be allowed to use a defense of property claim in court.

Also, most courts do not allow defendants to use traps to injure trespassers, especially if the trap could be deadly. Property owners are not generally allowed to use any kind of force in their absence that they could not use if they were present.

However, barbed-wire fences and other similar implements which are meant to prevent someone from trespassing into the property in the first place are generally permitted.

How Does Defense of Property Apply in Other Situations?

Defense of property claims can vary based on where you are defending your home or your personal possessions. Generally, you are allowed to use more force to defend your home and certain states also allow the use of deadly force in these cases.

In some states, you can also use more force to defend your car. However, when it comes to personal possessions, you can only use a reasonable amount of non-deadly force to retain or get back your property when someone is trying to take it from you directly.

Should I Contact a Lawyer?

Defense of property is an important defense that you can raise when you are faced with a lawsuit. But each state has its own laws regarding the amount of force that is reasonable and state courts have also interpreted those laws in different ways. It is important to understand your rights and obligations in these situations. In this context, it would be beneficial to consult with a local criminal lawyer before proceeding.