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legalgems
legalgems, Lawyer
Category: Legal
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I have a niece that has personal property of mine. It was

Customer Question

I have a niece that has personal property of mine. It was given to her with a stipulation, as long as she stayed drug free, she was able to have them. As soon as she relapsed, i got them back. It is an AA coin & 3 NA keychains given to me, by my father before he died. She has since relapsed and refuses to return them. She says their is nothing I can do about it, I will never get them back. Is that true and what can I do to get them back.
Submitted: 3 months ago.
Category: Legal
Expert:  legalgems replied 3 months ago.
What state is this in regards ***** *****?
Customer: replied 3 months ago.
Ohio
Customer: replied 3 months ago.
These items have dollar value to them, only sentimental
Expert:  legalgems replied 3 months ago.
Can I get an approximate value of the property at issue? Also os there any proof of the agreement such as a written contract, texts, proof of prior return or witnesses? I am sorry to hear she relapsed.
Customer: replied 3 months ago.
It is well known in my family that they were given on a conditional basis, nothing in writing only verbal. I do have witnesses of me asking for them back, including from her. No comment on her relapsing...... no monetary value, just that they were given to me by my dad before he died
Expert:  legalgems replied 3 months ago.

Thank you;

so basically there is such a thing as an oral contract and it is just as binding as a written contract, the only difference being the proof factor (the party alleging the contract has the burden of prove i.e. the plaintiff).

To find a contract, there are 4 elements:

1. Offer
2. Acceptance
3. Intention (meeting of the minds)
4. Consideration (fair value exchanged)

A contract can be voided by the court if it is against public policy (ie compelling a person to do a criminal act - so encouraging a person to refrain from a criminal act would not be a violation of public policy)

So the plaintiff can submit declarations from family members, and the fact that the items were treasured heirlooms will help as the judge will took to the totality of the circumstances.

The court can order specific performance-ie the return of the items , in lieu of the monetary reimbursement (if you can ascertain the monetary value and it is high, it can be used as a negotiation point- ie return the property or pay "X", giving an incentive for the return of the property which is the desired result).

For specific performance, the court can enforce this by the contempt power if the person willfully and intentionally violates a court order re: specific performance. This can result in award of attorney fees, fines even jail (under extreme circumstances).

For family members, sometimes it is helpful to first attempt mediation and then file for specific performance if that fails.

information on contracts here:

https://www.ohiobar.org/General%20Resources/LawandYou/TLAY_Chapter06.pdf

Also the possibility of the court ordering the award of attorney fees as sanctions can also be used as negotiations. So it may be worthwhile to first write a formal demand letter and then filing for specific performance if that does not have the desired result.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Customer: replied 3 months ago.
If I do the mediation, can she be responsible to pay the court fees? She has already told me I will never get them back. I also have proof I have the other coins. She lives in another county than I do, would I go to my court house?
Expert:  legalgems replied 3 months ago.

The mediation is completely voluntary and normally the parties split it; it can be agreed that one party will pay-but the whole idea of mediation is that it is voluntary so one party cannot be forced to pay.

Yes, it can go to your court house if the contract was formed there (oral) or if the breach occurred there.

some local agencies offer free mediation-this may include the small claims court, local high schools and universities (under their leadership program usually), and even the city or county clerk's office or other non profits. Often the civil court clerk knows this information and sometimes they have a list of free/paid mediators on the court website.

Customer: replied 3 months ago.
Thank you very much! I'm tired of her getting away with stuff and I'm going to do what i have to, to get those back.
Expert:  legalgems replied 3 months ago.

You are most welcome; you may want to see if a family member may be able to help intervene? I completely understand your frustration and it's too bad that she is unable to refrain but unfortunately the odds are against long term recoveries, at least in my experience. I'm sorry your family is having to deal with this.