Real estate disputes come in different forms: breach of contract claims arising out of real estate sales (both commercial and sale), ownership disputes, deed problems, adverse possession, private/public nuisance, etc. One of the more fundamental disputes that can arise is when another person takes possession of even a small parcel of real property you own. In such a case, the land-owner/Plaintiff has one of two legal remedies available: a claim for trespass damages or statutory ejectment.
A trespass claim is straightforward. If someone else intends himself/herself or any other objects to be physically present on property, then a claim for damages likely arises. The extent of the damages may, however, be minimal.
Ejectment is also fairly intuitive. By statute, an ejectment claim constitutes an action for the recovery of possession of premises and may be maintained in all cases where the plaintiff is legally entitled to the possession thereof. § 524.010. The right to possession of a property interest is a fundamental element in an ejectment claim. Gilbert v. K.T.I.,765 S.W.2d 289, 293 (Mo. App. 1988). In Missouri, the interest sought to be recovered in an action for ejectment must be of a tangible nature and must be capable of being delivered by the sheriff. Id. Incorporeal hereditaments are defined as “anything, the subject of property, which is inheritable and not tangible or visible.” Black’s Law Dictionary, sixth edition. Therefore, ejectment is generally an improper remedy for recovery of an incorporeal hereditament. Gilbert, 765 S.W.2d at 293.
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