PastPaperHero | Intentional torts - Harms to property interests

Learning Outcomes

This article covers intentional torts that harm property interests on the MBE, including:

Identifying and accurately applying the elements of trespass to land, trespass to chattels, and conversion, with attention to act, intent, causation, and required damages.
Distinguishing physical invasions of land from nuisance‑type interferences, and recognizing who qualifies as a rightful plaintiff in trespass actions.
Evaluating when nominal damages are available for trespass to land, when actual damages are required for trespass to chattels, and when interference becomes so serious that it constitutes conversion.
Analyzing fact patterns to differentiate lesser interferences from serious dominion or control, and to classify remedies as loss‑of‑use damages, diminution in value, or forced sale of the chattel’s full market value.
Assessing how public and private necessity, mistake of ownership, and privileges related to defense of property and recapture of chattels affect liability and the availability of nominal, actual, or punitive damages.
Developing exam strategies for quickly spotting property tort issues, organizing rule statements, and avoiding common MBE traps involving intent, causation, and overlapping remedies.

MBE Syllabus

For the MBE, you are required to understand intentional torts that interfere with rights in real and personal property, with a focus on the following syllabus points:

Identifying the elements of trespass to land, including what counts as a physical invasion and the scope of land (surface, airspace, and subsurface).
Recognizing who can sue for trespass (anyone in lawful possession, not just the owner).
Distinguishing trespass to land from nuisance (physical invasion vs. interference with use and enjoyment).
Distinguishing trespass to chattels from conversion based on the extent and duration of interference and the harm caused.
Applying the elements of trespass to chattels (intermeddling vs. dispossession) and the requirement of actual damages.
Applying the elements of conversion and common fact patterns that constitute “serious interference.”
Understanding remedies for conversion, including the forced sale measure (full market value) and replevin.
Applying the defenses of public and private necessity to trespass to land and to chattels, and understanding when necessity is a complete defense vs. when it only limits liability to actual damages.
Knowing the privileges related to recapture of chattels and defense of property at a high level (reasonable force only; no deadly force for mere property).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following acts best constitutes a trespass to land?
1. Standing on a public sidewalk and shouting insults at the landowner.
2. Flying a commercial airliner 30,000 feet over the landowner's property.
3. Accidentally hitting a golf ball onto the landowner's property.
4. Intentionally throwing a small stone onto the landowner's property.
A defendant takes the plaintiff's lawnmower from the plaintiff's open garage, believing mistakenly but honestly that it is his own. The defendant uses it once and returns it undamaged before the plaintiff notices it is missing. If the plaintiff sues the defendant, the plaintiff is most likely to prevail on a claim for:
1. Conversion, because the defendant intended to exercise dominion and control over the lawnmower.
2. Trespass to chattels, because the defendant intentionally interfered with the plaintiff's possession, even if briefly.
3. Neither trespass to chattels nor conversion, because the defendant's mistake was made in good faith.
4. Neither trespass to chattels nor conversion, because the plaintiff suffered no actual damages.
Which remedy typically requires the defendant to pay the full market value of the chattel at the time of the tort?
1. Trespass to land
2. Trespass to chattels
3. Replevin
4. Conversion

Introduction

Intentional torts protect not only personal integrity but also rights related to property. This article focuses on torts causing harm to property interests, specifically trespass to land, trespass to chattels, and conversion. These torts involve intentional interference with another's rights concerning their real property (land) or personal property (chattels).

The key themes are:

What counts as a qualifying interference with property.
What level of intent is required (purpose vs. substantial certainty).
How much harm must be shown (nominal vs. actual vs. serious interference).
Which defenses can justify or partially excuse an apparent tort, particularly the necessity defenses.

Key Term: Chattel
Tangible personal property (and, for some doctrines, certain intangible rights closely tied to documents) that can be owned and possessed, as opposed to real property (land).

Key Term: Trespass to Land
An intentional act by the defendant causing a physical invasion of the plaintiff's real property.

Key Term: Trespass to Chattels
An intentional act by the defendant causing interference with the plaintiff's right of possession in a chattel, resulting in actual damages.

Key Term: Conversion
An intentional act by the defendant causing serious interference with the plaintiff's right of possession in a chattel, justifying payment of the chattel’s full value.

With property torts, “intent” is almost always satisfied if the defendant meant to do the physical act (enter, take, damage), even if the defendant did not intend harm or did not know about the plaintiff’s property rights. Mistake of ownership is not a defense for any of these torts.

Trespass to Land

Trespass to land occurs when the defendant intentionally causes a physical invasion of the plaintiff's real property.

Elements of Trespass to Land

Physical Invasion:

A physical invasion occurs when:
- The defendant enters the plaintiff's land personally.
- The defendant causes a third person to enter the land.
- The defendant causes an object or substance to enter the land.
- The defendant remains on the land after a lawful right of entry has expired (e.g., overstaying permission).
- The defendant fails to remove an object from the land when under a duty to do so (continuing trespass).
“Land” includes:
- The surface.
- Reasonable airspace above (e.g., low-flying drones, not airplanes at cruising altitude).
- Reasonable subsurface (e.g., mining under a neighbor’s parcel).
A physical invasion requires some tangible intrusion. Throwing a stone, dumping soil, or allowing your dog to run onto a neighbor’s property all qualify. By contrast, noise, light, and odors generally do not constitute trespass; they are analyzed under nuisance.

Key Term: Physical Invasion
Any tangible entry by a person, object, or substance onto land, including placing or leaving objects there, that interferes with the possessor’s exclusive possession.

Intent:

The defendant must intend to commit the act of entry or causing entry. The defendant need not:
- Intend to trespass or act wrongfully.
- Intend to harm the land.
- Know the land belongs to someone else.
It is enough that the defendant acts with purpose, or with knowledge that entry is substantially certain to result (e.g., knowingly releasing debris that blows onto a neighbor’s land).

For exam purposes:
- A mistaken belief that the land is the defendant’s property is no defense.
- Minors and persons with mental impairments can still form the requisite intent; incapacity does not negate tort intent.
Causation:

The defendant’s act must cause the physical invasion. Direct entry clearly satisfies this. Indirect entry—such as setting in motion a chain of events that leads to debris or projectiles landing on the plaintiff’s land—also suffices.

Rightful Plaintiff

Anyone in lawful possession of the land may sue for trespass:

Owners.
Tenants.
Adverse possessors in actual possession.

A landlord out of possession generally may not sue for trespass that occurs during a lease term; the tenant, as current possessor, is the proper plaintiff for possession-based harms.

Trespass vs. Nuisance

Key Term: Nuisance (Contrast Only)
A substantial and unreasonable interference with another’s use and enjoyment of land. It may, but need not, involve a physical invasion.

Trespass always involves a physical invasion of the possessory interest in land.
Nuisance involves interference with use and enjoyment and can be intangible (e.g., noise, smoke, foul odors).

MBE questions often test whether a fact pattern describing noise, lights, or odors should be treated as nuisance rather than trespass.

Damages

Proof of actual damages is not required for trespass to land. The law protects the right to exclusive possession; any unauthorized entry is a legal injury.

Key Term: Nominal Damages
A small sum awarded to vindicate a legal right even when no measurable economic loss is proved.

The plaintiff can recover nominal damages for a bare trespass.
If the trespass causes harm (e.g., crop damage, broken structures), the plaintiff can recover actual damages for repair costs, loss of use, diminution in value, and sometimes emotional distress.

Key Term: Actual Damages
Monetary compensation for real, proven harm such as physical damage to property, loss of use, or economic loss.

In cases of continuing trespass (e.g., an encroaching structure or pipeline), the plaintiff may also seek injunctive relief ordering removal or cessation.

Continuing Trespass

A trespass becomes “continuing” when the defendant’s wrongful presence or object remains on the land:

Leaving equipment or structures on land after consent has expired.
Building encroachments that extend onto the plaintiff’s land.

Each day of continued presence can be treated as a new trespass, supporting ongoing damages and potential injunctive relief.

Worked Example 1.1

Builder was hired to construct a fence on Owner A's property. Following the survey markers provided by Owner A, Builder constructed the fence. Unknown to Builder or Owner A, the survey markers were incorrectly placed, and a portion of the fence extended one foot onto Neighbor B's adjacent property. Neighbor B discovers the encroachment six months later. Can Neighbor B successfully sue Builder for trespass to land?

Answer:
Yes. Builder intended to perform the physical act of constructing the fence where he did, which resulted in a physical invasion of Neighbor B's land. Builder's mistaken belief that he was constructing the fence entirely on Owner A's property is irrelevant; the intent required is only the intent to enter the land upon which the fence was built, not the intent to wrongfully trespass. Nominal damages are available even without proof of actual harm, and the encroaching fence also constitutes a continuing trespass until removed.

Defense: Necessity

Necessity can be a defense to trespass to land (and also trespass to chattels and conversion). It arises when interference with property is reasonably and apparently necessary to avoid threatened injury from a natural or other force, and the threatened injury is substantially more serious than the invasion undertaken to avert it.

Key Term: Necessity
A defense applicable to property torts where the defendant invades or damages the plaintiff's property in an effort to avoid a greater, imminent danger.

Public Necessity

Key Term: Public Necessity
A complete defense allowing invasion or destruction of private property where reasonably necessary to protect the community or a large number of people from a serious public calamity.

Classic examples: destroying a building to create a firebreak; flooding private land to prevent a dam collapse that would devastate a city.
If the elements are met, the defendant is not liable for any property damage, even actual damage.

Private Necessity

Key Term: Private Necessity
A qualified privilege allowing invasion or use of another’s property when reasonably necessary to protect the defendant’s own person or property (or that of a few others) from imminent serious harm.

Private necessity has several important consequences:

It is a qualified, not absolute, defense.
The defendant is not liable for nominal or punitive damages for the technical trespass.
The defendant remains liable for actual damage caused to the property.
The property owner may not use force to expel the defendant while the emergency continues; the defendant has a temporary privilege to remain.

Key Term: Forced Sale (in Necessity Context)
When the defendant’s justified emergency use of property destroys or damages it, and the defendant must pay its value, the law effectively treats this as a compelled purchase of the property interest used or destroyed.

Worked Example 1.2

A boater is caught in a sudden storm on a lake and reasonably fears that her boat will capsize. She drives the boat to a private pier clearly marked “NO TRESPASSING,” ties up, and gets off the boat. The pier owner tells her to leave immediately and begins untying the boat; the boater refuses, fearing the storm. The owner pushes the boat away, and it is lost. If the boater sues the pier owner, what result?

Answer:
The boater had a private necessity privilege to use the pier to protect her property from the storm. The owner could not lawfully expel her boat during the emergency. By untying and pushing the boat away, the owner interfered with the boater’s privileged use and is liable for the full value of the boat. Had the boater’s use damaged the pier, she would have owed actual damages for that harm, but she would not be a trespasser liable for nominal damages.

Trespass to Chattels

Trespass to chattels involves an intentional act by the defendant that interferes with the plaintiff's right of possession in personal property (chattel).

Key Term: Intermeddling
A type of interference with chattels involving direct physical contact or damage to the chattel (e.g., scratching a car, hitting a dog).

Key Term: Dispossession
A type of interference where the defendant deprives the plaintiff of possession of the chattel (e.g., taking, withholding, or misdelivering it).

Elements of Trespass to Chattels

Act of Interference:

Interference can occur by:
- Intermeddling: Directly damaging or altering the chattel.
- Dispossession: Taking, using, or withholding the chattel from the person entitled to possession—even temporarily.
Examples:
- Kicking someone’s dog and injuring it (intermeddling).
- Borrowing someone’s phone without permission for several hours (dispossession).
- Intentionally disabling another’s computer system.
Intent:

The defendant must intend to do the act that constitutes the interference:
- Purpose to take, use, or handle the property; or
- Knowledge that such interference is substantially certain to occur.
The defendant need not intend to cause harm, and mistake of ownership is not a defense:
- Taking the wrong laptop from a table, believing it to be yours, still satisfies intent.
Causation:

The interference must be caused by the defendant’s act.
Damages (Actual Harm Requirement):

Trespass to chattels generally requires actual damage or harm. This may include:

Impairment of the chattel’s condition, quality, or value (cost of repair, diminished value).
Loss of use for a substantial time (e.g., rental value or lost profits).
For dispossession, the loss of possession itself counts as actual harm: the plaintiff can recover at least for the period of deprivation.

Courts may phrase it this way:

For intermeddling, the plaintiff must show actual damage or loss of use.
For dispossession, the fact of dispossession itself is sufficient harm; the plaintiff can recover damages for the period of loss, and some courts describe this as supporting at least nominal damages.

Worked Example 1.3

Alex parked his identical blue bicycle next to Ben's identical blue bicycle in a public rack. When leaving, Alex mistakenly took Ben's bicycle, believing it was his own. Alex rode it home (two blocks) and realized his mistake upon seeing his own bicycle already there. He immediately returned Ben's bicycle to the rack, completely undamaged. Can Ben successfully sue Alex for trespass to chattels?

Answer:
Probably not. Alex intentionally performed the act of taking the bicycle (intent) and caused interference (temporary dispossession), but trespass to chattels usually requires actual damages. Because the bicycle was returned quickly and undamaged and Ben neither noticed its absence nor lost use in any meaningful way, many courts would find the interference too trivial to support liability. On an exam, the best answer is that there is no trespass to chattels because there is no proved actual harm.

Trespass to Chattels vs. Conversion

The line between trespass to chattels and conversion is one of degree:

Trespass to chattels: lesser interference; remedy is value of loss of use, cost of repair, or diminution in value.
Conversion: serious interference; remedy is full market value (forced sale) or return of the chattel via replevin.

Factors (drawn from the Restatement and tested on the MBE) include:

Extent and duration of control.
Defendant’s intent to assert a right inconsistent with the plaintiff’s.
Defendant’s good faith (relevant but not controlling).
Extent of actual harm.
Expense and inconvenience to the plaintiff.

If you can reasonably restore the chattel to its prior condition at modest cost, and the interference period is short, think trespass to chattels. If the interference is major or permanent, think conversion.

Worked Example 1.4

Dana borrows her roommate’s car without permission to run a 10‑minute errand. She returns the car promptly and undamaged. The roommate did not need the car during that time. What is the best characterization?

Answer:
Dana has technically interfered with the roommate’s possessory interest (dispossession). However, in the absence of any actual damage or meaningful loss of use, most courts would not treat this as a compensable trespass to chattels. On an exam, look for answers emphasizing that de minimis interferences without actual harm do not give rise to liability.

Conversion

Conversion is an intentional act by the defendant that causes the destruction of or serious interference with the plaintiff's right of possession in a chattel.

Elements of Conversion

Act of Interference:

The interference with the plaintiff's possessory rights must be serious enough to warrant that the defendant pay the full value of the chattel. Common acts constituting conversion include:
- Wrongful acquisition: theft, embezzlement.
- Wrongful transfer: selling or pledging another’s property without authority.
- Wrongful detention: refusing to return a chattel after a proper demand.
- Substantial change: materially altering the chattel (e.g., turning someone’s gold into jewelry).
- Serious damage or destruction: smashing, burning, or losing the chattel.
- Serious misuse: using the chattel in a way that deeply violates the owner’s rights and causes major wear or risk.
Less obvious examples that can still be conversion:
- Selling stolen goods even if you are a good-faith purchaser.
- Using a rare collectible item in a way that significantly diminishes its value.
Intent:

The defendant must intend to perform the act that results in the interference:
- Purpose to exercise dominion or control over the chattel; or
- Knowledge that such dominion is substantially certain to occur.
As with trespass to chattels:
- Mistake of law or fact is not a defense. A person who in good faith buys stolen goods and then sells them can be liable for conversion.
- The defendant need not intend to deprive the owner permanently; it is the seriousness of the interference that matters.
Causation:

The defendant’s act must cause the serious interference.
Seriousness of Interference (Damages Threshold):

Courts consider multiple factors (which may be explicitly listed in MBE options):

The extent and duration of the defendant’s control.
The defendant’s intent to assert a right inconsistent with the plaintiff’s.
The defendant’s good or bad faith.
The extent of the actual harm to the chattel.
The expense and inconvenience caused to the plaintiff.

If these factors collectively show major interference, the conduct is conversion; otherwise, it remains trespass to chattels.

Remedies for Conversion

Key Term: Forced Sale (in Conversion)
The effect of a conversion judgment requiring the defendant to pay the chattel’s full market value; ownership of the chattel is treated as having passed to the defendant.

Key Term: Replevin
A lawsuit by which the plaintiff seeks the return of specific personal property wrongfully taken or withheld, rather than (or in addition to) money damages.

The main remedies:

Damages: The standard remedy is the fair market value of the chattel at the time and place of conversion, plus interest. This is a “forced sale”; the plaintiff is compensated as though the chattel had been sold to the defendant.
Replevin: The plaintiff may instead elect to recover the chattel itself (if available and identifiable) by an action for replevin, plus damages for loss of use.

Return of the chattel after the conversion does not erase the tort, but it may reduce damages.

Worked Example 1.5

A musician's brother borrowed the musician's electric guitar. The brother told the musician that he was going to use it the next day to teach the children in his second-grade class about different musical instruments. Instead, the brother went to a rowdy bar that evening and played the electric guitar with his rock band all night long. A drunk bar patron got on stage during one of the songs, grabbed the guitar from the brother, and smashed it against the ground. The brother took the guitar to a repair shop the next day and was told that it would cost $750 to restore the guitar to its original condition. At the time of the incident, the guitar was worth$ 1,500. The musician asserts a claim against his brother for conversion. What is the musician entitled to recover?

Answer:
The brother intentionally used the guitar in a way that substantially increased the risk of serious harm (taking it to a bar contrary to the stated, limited purpose). Even though the actual smashing was done by a third party, the brother’s misuse is sufficiently connected and foreseeably resulted in destruction. This constitutes conversion. The musician is entitled to recover the full market value of the guitar at the time of conversion— $1,500—not merely the$ 750 repair cost. The conversion remedy treats the guitar as having been sold to the brother for its full value.

Exam Warning

Distinguishing between trespass to chattels and conversion is essential. Conversion involves serious interference justifying payment of the chattel's full value. Trespass to chattels involves less serious interference, usually remedied by:

Cost of repair.
Diminution in value.
Damages for loss of use.

If the interference is minor and causes no actual damage (other than brief dispossession), it may not even rise to the level of trespass to chattels.

Worked Example 1.6

Sarah borrows her friend Tom's rare, vintage guitar for a weekend gig. The agreement specified it was only for that one performance. Instead, Sarah takes the guitar on a month-long road trip, plays it at numerous unplanned shows, significantly wears down the frets, and causes several deep scratches. When Tom demands it back, Sarah returns it. Can Tom successfully sue Sarah for conversion?

Answer:
Yes. Sarah intentionally performed acts (taking the guitar on a long trip, using it extensively beyond permission) that constituted serious interference with Tom's right of possession. The interference was significant in duration (a month vs. a weekend), extent (numerous shows, clear physical wear and scratches), and involved misuse well beyond the agreed-upon scope. The seriousness warrants treating the situation as conversion and requiring Sarah to pay the full value of the guitar at the time she first exceeded the permitted use.

Key Point Checklist

This article has covered the following key knowledge points:

Trespass to land requires an intentional physical invasion of real property; the defendant need only intend the act of entry, and mistake of ownership is no defense.
Trespass to land protects the possessory interest; nominal damages are available even without proof of actual harm, and injunctive relief is available for continuing trespasses.
Trespass to land is distinct from nuisance: trespass always involves a physical invasion; nuisance is about substantial and unreasonable interference with use and enjoyment.
Trespass to chattels requires intentional interference with possession of personal property plus actual harm (damage, loss of use, or dispossession).
Conversion requires intentional serious interference with a chattel, justifying a forced sale remedy—payment of the chattel’s full market value at the time and place of conversion.
The degree and duration of interference, the defendant’s intent, good faith, and the extent of harm determine whether conduct is trespass to chattels or conversion.
Mistake of ownership is not a defense to trespass to land, trespass to chattels, or conversion; the intent element focuses on the physical act.
Remedies for conversion include damages equal to fair market value (forced sale) and replevin to recover the specific chattel.
Public necessity is a complete defense to trespass or conversion when property is used or destroyed to avert a serious public calamity.
Private necessity is a qualified defense: it privileges entry or use to avoid greater harm but requires payment of actual damages for property harmed and bars nominal or punitive damages for the technical trespass.

Key Terms and Concepts

Chattel
Trespass to Land
Physical Invasion
Nuisance (Contrast Only)
Nominal Damages
Actual Damages
Necessity
Public Necessity
Private Necessity
Intermeddling
Dispossession
Trespass to Chattels
Conversion
Forced Sale (in Necessity Context)
Forced Sale (in Conversion)
Replevin

Intentional torts - Harms to property interests