Trial by Jury in Real Property Cases
By Randall Block and Victoria Paal
©2014 All Rights Reserved.
Any litigator (and most transactional lawyers) can recite the basic law that the right to a jury depends generally upon whether the action to be adjudicated is legal or equitable. But whether a party has a right to a jury trial in a given case involving real property can be surprising, even to long-time practitioners. What is legal and what is equitable depends upon the particular action’s historical underpinnings; whether the action is one or the other is not necessarily intuitive in the real property context. A lawsuit seeking an injunction against interference with an easement can be a legal cause of action, providing for a right to trial by jury. By contrast, a foreclosure action in which the mortgage holder seeks the recovery of real property collateral after a determination that money is owing upon a note is equitable. A declaratory relief action is neither legal nor equitable, but is sui generis, and might or might not, include the right to a jury in a given case. The following is a practical primer on the right to a jury trial in real property disputes.