However, where an item is simply taken without the consent of the owner or retained without the consent of the owner, it is a much clearer issue and is covered by the criminal justice acts relating to theft.
Borrowing v theft
As with the majority of offences prosecuted in Ireland, there is a definition of what constitutes the offence set out in legislation.
In the case of theft this is set out in Section 4 of the Criminal Justice (Theft and Fraudulent Offences) Act 2001, as amended, which outlines that a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving the owner of it.
In order for a theft to have taken place there is effectively a two-step test:
1. Is the item/property being held without the consent of the owner?
2. Does the person holding the item intend to deprive the owner of the item/property?
In order for the offence of theft to have been committed, both elements of the test must be satisfied, and this is what the court would consider if such a case were to come before them.
It is hard to tell what was said between you and your neighbour when you sought the return of the mower, but it seems that your neighbour accepts that the item which you lent him was not returned.
The value of the item/property is not relevant as to whether theft actually occurred. Even if an item is of little or no value, it is still capable of being stolen.
In this instance, if your neighbour accepts that the item that you lent him was not returned, and you have made it clear that you would like the item returned, then he is now holding the item without the consent of the owner and with the intention of depriving the owner of the item. In my view this would constitute theft as it is set out in legislation.
However, it may be that your neighbour intends to make the argument that the item was not lent to him, rather it was a gift.
If this is the case, you would have to sue for the return of the item. Your neighbour would be in a weak position to defend against this claim, unless he could show a reason for the gift or some evidence as to why the item would have been gifted to him.
You said your neighbour had the mower reconditioned and now does not wish to return it.
If it is the case that he understood that the item was given as a gift then this may cause more difficulty to resolve.
Again, you would have to sue your neighbour for the return of the item and as the value of the item may have been significantly increased as a result of the reconditioning, it would be for the court to decide on an appropriate remedy.
If you have any witnesses to your loaning it to your neighbour, you should check with them that they recall your doing so, as that would support your case.
As is wise in all disputes involving neighbours, you should seek to have these difficulties resolved without involving the Gardai or bringing the matter before the court.
You may find the Gardai are reluctant to get involved but may be willing to advise your neighbour if he falls foul of the criminal justice acts.
If you intend to progress the dispute through the civil court system, you should seek advice from your solicitor.
This article is a general guide. You should seek professional advice in relation to your individual circumstances.
Theresa Murphy is a barrister based in Ardrahan, Co. Galway.