To recover a personal property legally, the proper remedy is to file an action for replevin. Replevin is a provisional remedy used exclusively for the recovery of possession of personal or movable property.
Here are the key legal principles governing replevin:
- Subject Matter Restrictions: Replevin cannot be used to recover real property, such as machinery and equipment that have been immobilized because they are indispensable to an industry. However, if the contracting parties expressly agree to treat a real property as personal property, they are estopped from claiming otherwise, making the property a valid subject for a writ of replevin.
- Replevin Bond: To avail of this remedy, the applicant must post a bond, typically double the value of the property. The purpose of this bond is to answer for any damages or expenses the opposing party may suffer if the court later rules that the applicant is not entitled to repossess the property.
- Use in Chattel Mortgages: If a buyer on installment defaults, the creditor-mortgagee can file an action for replevin to seize the mortgaged property. This is considered a preliminary step preparatory to an extrajudicial foreclosure, not an action for the collection of a debt or the foreclosure itself.
- Recovery of Expenses: If a mortgagor hides the property or stubbornly refuses to surrender it, forcing the creditor to file a replevin suit, the creditor has the right to recover the seizure expenses and reasonable attorney’s fees incurred during the replevin action.
- Effect on Unpaid Rentals/Installments (Recto Law): If a contract purports to be a lease of personal property with an option to buy, and the lessor uses a writ of replevin to seize the equipment, this deprives the lessee of possession. Under the Recto Law, this operates as a cancellation of the contract, waiving the lessor’s right to demand any unpaid rentals or balance.
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