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Claim of Right Defense &
Defense of Property

The defense of claim of right is allowed where a person truly believed that he was entitled to possess property despite the fact that he is wrong as to that fact. The claim of right defense is similar, but different than, the right to defend property. Both defenses are discussed in this article.

Claim of Right

The defendant is entitled to an acquittal of a criminal charge when he takes property from another person because the defendant honestly, but wrongfully, believes he is entitled to obtain that property. In order for the defense of claim of right to be applicable, the following circumstances must be present:

  • The defendant obtained property with an honest belief that he was entitled to obtain the property

  • The defendant’s belief was subjectively honest and true

  • The defendant’s belief was objectively reasonable under the circumstances

  • The defendant’s actions were not concealed at the time he took the property or after he obtained the property (demonstrates lack of an honest belief as to the defendant’s claim)

  • The property taken does not involve illegal (i.e. illegal narcotics, explosives, weapons, stolen property, etc.).

Note: A juror is entitled to convict the defendant on the criminal charges if that juror has any reasonable doubt as to the defendant’s honest belief that the property taken was not the defendant’s.

For example, a husband may be entitled to use the defense of claim of right to absolve himself of a robbery charge if the husband takes a purse from a woman only because the husband truly believes that the woman stole the purse from his wife. This is true even if the purse that the husband took from the woman turns out not to be his wife’s purse.

Imminent Harm Required: The claim of right defense only works if the property taken by the defendant is in imminent harm. For example, a defendant may not use the claim of right defense if he takes a painting from a museum without permission because he truly, but wrongfully, believes that the painting is his to take. This is because there is no immediate harm to the painting as it hangs in the museum.


Illegal Property: The claim of right defense does not apply to items that are illegal for the defendant to own. For example, the claim of right defense will not protect a defendant if the defendant takes metal knuckles from another person because the defendant truly, but wrongfully, believes that the metal knuckles actually belong to the defendant. This is because the possession of metal knuckles is illegal.

Intoxication & Claim of Right: If the defendant obtained property that he truly, but wrongfully, believed was his, and that belief stemmed from an intoxicated mind, then the claim of right defense will not likely apply; however, the defendant might have a defense of intoxication claim under the same circumstances.

Common Usage: The claim of right defense is most commonly used in theft cases, including robbery, grand and petty theft, unauthorized use of vehicle, grand theft auto, and elder theft.

Note: The claim of right defense is not available in cases where the defendant used deadly force to obtain the property. This is true regardless of whether or not the defendant truly believed he was entitled to obtain the property. It is also true even if the defendant did not actually kill the victim when the defendant attempted to use deadly force to obtain property.

Right to Defend Property

The right to defend property is a defense that may be used when a person is charged with an assault or battery type offense after he used force to defend his property. The defense is different that the claim of right defense because the claim of right defense involves the defendant taking property that he wrongfully believes is his to take. With the right to defend property, the defendant is protecting property that is truly the defendant’s property.

The right to defend property applies when the following conditions exist:

  • The defendant uses reasonable force to protect property

  • The threat to the defendant’s property is in imminent harm

  • The property protected belongs to the defendant or his family

Note: Reasonable force to protect property means no force above and beyond that which is necessary to protect the property. This is measured by the reasonable person standard, which means that the force used to protect property from imminent harm is no more than what the average person would have used in the same or similar circumstances. This also means that an actual danger to the property does not have to exist, but rather, the perceived danger to the property is all that is required to entitle the defendant a right to defend his property.

For example, a defendant may use reasonable force to eject a trespasser from the defendant’s property; however, the force used must be reasonable under the circumstances.

Deadly Force: A defendant does not have the right to use deadly force to protect property. For example, if the defendant rigs a shotgun to shoot at anyone entering his uninhabited storage unit and a victim is killed after the victim attempts to break into the defendant’s storage unit then the defendant will likely be charged with murder or manslaughter. This is because the defendant does not have the right to protect property with deadly force.

To learn more about common defenses to crimes, including the defenses of claim of right and right to defend property, contact our criminal defense lawyers today. Our criminal lawyers will patiently discuss with you your rights and defense options as they apply to your case. Our lawyers are available every day of the week and we have successfully defended hundreds of client charged with all manner of felony and misdemeanor crimes in San Bernardino County. Call today!


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