Can ejectment be an equitable remedy? Forum
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UCFundergrad
- Posts: 43
- Joined: Thu Nov 04, 2010 7:32 pm
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sconnielaw13
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Re: Can ejectment be an equitable remedy?
Ejectment is a type of specific restitution. Essentially ejectment is just like replevin except it deals with real property rather than personal property. Replevin and ejectment I think are normally considered equitable remedies, legal remedies would simply compensate you for your loss in the form of damages. You could also think of ejectment as a quasi injunctive remedy, which is also equitable in nature. Not that any of this really matters though considering almost no states have seperate courts of equity and law.
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OneMoreLawHopeful
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Re: Can ejectment be an equitable remedy?
Technically the answer is "no."
Ejectment is a specific remedy at law, only available after a merits trial, where the sheriff is ordered to forcibly remove the defendant's possessions from the plaintiff's real property.
However, the court can always issue an injunction that requires the defendant to remove his own possessions from the plaintiff's real property, which would seem to have the same effect as ejectment, and would be a remedy at equity.
Yet there are two important differences:
First, in an ejectment action, the removal is enacted by the sheriff, whereas an injunction is enforced by the court's contempt power and the sheriff is not involved. Either option can be good or bad for the plaintiff. The trouble with ejectment is that the sheriff will, in many instances, simply return the writ unsatisfied when it requires a lot of work on his behalf. As an example, sheriffs are usually unwilling (and lack the equipment) to demolish encroaching buildings even after a writ of ejectment has been issued.
By contrast, if the order is an injunction, then the defendant himself would be responsible for demolishing the encroaching buildings and could be fined/jailed under the contempt power if he failed to do so. However, this would require a contempt hearing, and then additional proceedings, so an injunction can take longer to enforce than an ejectment.
The second major difference between an injunction and ejectment is that an injunction can be available pre-judgment as a TRO or preliminary injunction. Ejectment is only ever available post-judgment (many states have pre-judgment replevin statutes, but the same is not true of ejectment). As a result, if immediate action is required, then the plaintiff might be better off with an injunction instead of ejectment because it may be available pre-judgment.
Nonetheless, the word "ejectment" is usually going to be a legal remedy because otherwise the word used would just be "injunction."
Ejectment is a specific remedy at law, only available after a merits trial, where the sheriff is ordered to forcibly remove the defendant's possessions from the plaintiff's real property.
However, the court can always issue an injunction that requires the defendant to remove his own possessions from the plaintiff's real property, which would seem to have the same effect as ejectment, and would be a remedy at equity.
Yet there are two important differences:
First, in an ejectment action, the removal is enacted by the sheriff, whereas an injunction is enforced by the court's contempt power and the sheriff is not involved. Either option can be good or bad for the plaintiff. The trouble with ejectment is that the sheriff will, in many instances, simply return the writ unsatisfied when it requires a lot of work on his behalf. As an example, sheriffs are usually unwilling (and lack the equipment) to demolish encroaching buildings even after a writ of ejectment has been issued.
By contrast, if the order is an injunction, then the defendant himself would be responsible for demolishing the encroaching buildings and could be fined/jailed under the contempt power if he failed to do so. However, this would require a contempt hearing, and then additional proceedings, so an injunction can take longer to enforce than an ejectment.
The second major difference between an injunction and ejectment is that an injunction can be available pre-judgment as a TRO or preliminary injunction. Ejectment is only ever available post-judgment (many states have pre-judgment replevin statutes, but the same is not true of ejectment). As a result, if immediate action is required, then the plaintiff might be better off with an injunction instead of ejectment because it may be available pre-judgment.
Nonetheless, the word "ejectment" is usually going to be a legal remedy because otherwise the word used would just be "injunction."
