Conversion

A conversion is the deprivation of another’s right of property in, use, or possession of a chattel, or other interference therewith without the owner’s consent and without lawful justification[i].  A conversion occurs when a person without authority or permission intentionally takes the personal property of another or deprives another of possession of personal property[ii].

The using of a thing without the license of the owner or a wrongful sale of it is a conversion[iii].  An action for conversion may be maintained by persons having the immediate right to possession of the article converted[iv].

A conversion may be committed by unreasonably withholding possession from one who has the right to it.  The elements of conversion are[v]:

  • the plaintiff’s ownership or right to possession of the property;
  • the defendant’s conversion by wrongful act inconsistent with the property rights of the plaintiff; and
  • damages.

A person not in lawful possession of a chattel may commit conversion by[vi]:

  • intentionally dispossessing the lawful possessor of the chattel,
  • intentionally using a chattel in his possession without authority so to use it,
  • receiving a chattel pursuant to an unauthorized sale with intent to acquire for himself or for another a proprietary interest in it,
  • disposing of a chattel by an unauthorized sale with intent to transfer a proprietary interest in it, or
  • refusing to surrender a chattel on demand to a person entitled to lawful possession.

Conversion is an intentional tort[vii].  The intent that must be proven is the intent to exercise dominion and control over the plaintiff’s property in a manner inconsistent with the plaintiff’s rights[viii].  However, intent or purpose to do a wrong is not necessary to establish conversion[ix].

A conversion may be proved in one of three ways[x]:

  • by tortious taking;
  • by any use or appropriation of the use of the person in possession, indicating a claim of right in opposition to rights of the owner; or
  • refusal to give up possession to the owner on demand.

Since the act must be knowingly done, neither negligence, active or passive, nor a breach of contract, even though it results in injury to, or loss of, specific property, constitutes a conversion[xi].  It follows therefore that mistake, good faith, and due care are ordinarily immaterial and cannot be defenses in an action for conversion.

Wrongful conversion applies only to personal property[xii].  Personal property consists of every kind of property that is not real[xiii].  Thus, an action for conversion generally lies only with respect to personal property and real estate is not subject to conversion[xiv].  Further, personal property is the subject of conversion if it is of a tangible nature or if it is tangible evidence of a title to intangible or real property[xv].  Money can be the subject of conversion if the money in question can be identified[xvi].

The essence of a conversion is not the acquisition of property but the wrongful deprivation of that property from its true owner[xvii].  One who is lawfully in possession of property may nevertheless be liable for a conversion for exceeding the scope of authority for that lawful possession when the use seriously violates the true owner’s right of control.

To establish a conversion claim, a plaintiff must prove that:

  • it had a possessory interest in the property,
  • the defendants intentionally interfered with the plaintiff’s possession, and
  • the defendants’ acts are the legal cause of the plaintiff’s loss of property.

A possessory interest in personal property is sufficient to maintain an action for conversion against one who sells that property without notifying the lawful possessor.  Even though the lawful possessors do not have legal title, if s/he exercises control of it by taking possession of it and maintaining it for a period of time, his/her rights in the chattel are sufficient.

Defenses that are available for conversion are:

  • Abandonment.
  • Authority of law.
  • Consent or approval.
  • Statutes of limitation.
  • Interest of defendant.
  • Lack of value of property.
  • Nonexistence or lack of identity of property.
  • Privilege.
  • Unlawful and illegal acts.
  • Waiver, ratification, and estoppel.

The owner of the premises is not liable for conversion when the following circumstances exist:

  • lack of knowledge of the ownership of the chattel;
  • absence of a right to leave the chattel on the premises;
  • notice to the owner to remove it;
  • failure to remove the chattel within a prescribed time;
  • apparent lack of value of the property; and
  • apparent abandonment of the chattel by the owner.

A plaintiff who proved conversion in a common law action is entitled to damages equal to the full value of the chattel at the time and place of conversion[xviii].  The measure of damages in conversion is the fair market value of the property at the time and place of the conversion[xix].

The modern tort of conversion subjects the wrongdoer to liability to the possessor for the entire value of the chattel in addition to any special damages resulting from the conversion. This liability does not depend on the existence of the possessor’s responsibility to the owner for the loss of the chattel[xx].

Although the normal measure of damages for conversion is the value of the property at the time of the conversion and a fair compensation for the time and money properly expended in pursuit of the property, emotional distress damages is also allowed[xxi].

A person who knowingly or intentionally exerts unauthorized control over the property of another person commits criminal conversion[xxii].  A person engages in conduct knowingly if, when he engages in the conduct, he is aware of a high probability that he is doing so.

An essential element of the crime of criminal conversion is that the property must be owned by another and the conversion thereof must be without the consent and against the will of the party to whom the property belongs, coupled with the fraudulent intent to deprive the owner of the property[xxiii].

[i] Stevenson v. Economy Bank of Ambridge, 413 Pa. 442 (Pa. 1964)

[ii] Darcars Motors of Silver Spring v. Borzym, 150 Md. App. 18 (Md. Ct. Spec. App. 2003)

[iii] Clark v. Whitaker, 19 Conn. 319 (Conn. 1848)

[iv] Owens v. Andrews Bank & Trust Co., 265 S.C. 490 (S.C. 1975)

[v] Kasdan, Simonds, McIntyre, Epstein & Martin v. World Sav. & Loan Ass’n (In re Emery), 317 F.3d 1064 (9th Cir. Cal. 2003)

[vi] Baram v. Farugia, 606 F.2d 42 (3d Cir. Pa. 1979)

[vii] Vaughn v. Vaughn, 146 Md. App. 264 (Md. Ct. Spec. App. 2002)

[viii] Id.

[ix] Chem-Age Indus. v. Glover, 2002 SD 122 (S.D. 2002)

[x] Litzinger v. Estate of Litzinger (In re Litzinger), 340 B.R. 897 (B.A.P. 8th Cir. 2006)

[xi] Taylor v. Forte Hotels Int’l, 235 Cal. App. 3d 1119 (Cal. App. 4th Dist. 1991)

[xii] Hartlin v. Cody, 144 Conn. 499 (Conn. 1957)

[xiii] Olschewski v. Hudson, 87 Cal. App. 282 (Cal. App. 1927)

[xiv] Waldron v. Rotzler, 862 F. Supp. 763 (N.D.N.Y 1994)

[xv] Roystone v. John H. Woodbury Dermatological Institute, 67 Misc. 265 (N.Y. Sup. Ct. 1910)

[xvi] Allen v. Gordon, 429 So. 2d 369 (Fla. Dist. Ct. App. 1st Dist. 1983)

[xvii] Yaeger v. Magna Corp. (In re Magna Corp.), 2005 Bankr. LEXIS 1114 (Bankr. M.D.N.C. Mar. 14, 2005)

[xviii] Baram v. Farugia, 606 F.2d 42 (3d Cir. Pa. 1979)

[xix] Vaughn v. Vaughn, 146 Md. App. 264 (Md. Ct. Spec. App. 2002)

[xx] Wallander v. Barnes, 341 Md. 553 (Md. 1996)

[xxi] Spates v. Dameron Hospital Assn., 114 Cal. App. 4th 208 (Cal. App. 3d Dist. 2003)

[xxii] Computers Unlimited v. Midwest Data Sys., 657 N.E.2d 165 (Ind. Ct. App. 1995)

[xxiii] People v. Fielden, 162 Colo. 574 (Colo. 1967)


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