What is a Break Order?

Lets say that there is property at issue in a commercial litigation case: personal property, like items or inventory or machinery. Some item, where, in the case, the question is whether the property may be stolen or who actually owns the property.

There is always the fear that the party in possession of the item when the lawsuit is filed may destroy it, transfer it or sell it. The party filing the lawsuit claiming it’s his or hers does have a rather drastic way of making sure that doesn’t happen: the break order.

What is a Break Order?

A break order is an order by the court instructing law enforcement to break in somewhere and seize property in order to protect it until ownership of the property can be determined, or otherwise, to stop a wrongdoer from causing damages. This is not to be confused with the break order used sometimes in family law cases, which is a different kind of order.

How Do You Get a Break Order?

Because it is such a drastic remedy, and because it often happens even before the issues in the case are fully heard and resolved, it is not an easy thing to get a judge to grant. However, in some cases, such as where creditors have already obtained a judgment and where the creditors can show that some item of property may be in danger of being destroyed, lost or transferred, it is a little easier to obtain such an order.

However, in almost every case, to get a break order, the party requesting it must show the court that there is probable cause to believe that the property is being hidden, destroyed, or lost somehow. This can often be shown when the sheriff has already been called out to get property and finds it to be hidden or not where the property is supposed to be.

A Writ Must Come FIrst

Generally, a court must issue a writ before a break order can be requested. In order words, the court must send the sheriff out to peacefully obtain property, or else, the court order itself must request the return of property before the more forceful break order can be issued.

Ongoing Harm

Break orders can also be used where there is ongoing harm; imagine that someone has illegally counterfeited thousands of products and is selling them daily. The person suing for infringement may be able to obtain a break order to have the sheriff seize the property in order to avoid those counterfeited goods from getting out on the open market.

Relationship to Replevin

Often, break orders are coupled with requests for replevin, which is a cause of action asking the court to take back or seize property. If and when issued, the break order will authorize the sheriff to forcefully break into a property, and take and preserve the items or property at issue until the replevin case can be resolved.

If you need emergency action in your commercial litigation case, let us help. Call our West Palm Beach commercial litigation lawyers at Pike & Lustig to help you.

Source:

flsenate.gov/Laws/Statutes/2011/78.10