What Reasonable Steps to Prevent the Use Means
An owner who finds out what is happening on the property has not lost the defense. The statute asks instead what was done next, measures it against what could reasonably be expected, and stops short of demanding conduct that would put someone in danger.
The rule in short
Section 983(d)(2)(A)(ii) preserves the innocent owner defense for a claimant who, upon learning of the conduct, did all that reasonably could be expected under the circumstances to terminate such use of the property. Section 983(d)(2)(B) supplies a presumption keyed to timely notice to law enforcement and timely revocation of permission, and provides that no one is required to take steps likely to subject another person to physical danger.
The second branch of the pre-existing innocent owner provision is the one that gets litigated. It assumes knowledge rather than denying it, and asks a question about conduct: what did the owner do once the unlawful use became apparent. Section 983(d)(2)(A)(ii) protects a claimant who, upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.
The branch that survives knowledge
The two branches of section 983(d)(2)(A) are joined by "or", and the consequence is easy to state and easy to forget. Proof that an owner knew what was happening does not end the defense. It moves the case from the first branch to the second, where the subject is the response rather than the knowledge. A rental agent who was told about the activity, a lender that read the file, a relative who was present in the house: each of them has lost the first branch and each of them can still win under the second.
Three features of the wording control what follows. The obligation is triggered by learning of the conduct, so nothing is owed before that point. The measure is what reasonably could be expected under the circumstances, which is comparative rather than absolute. And the object is to terminate such use of the property, not to end the offense, secure a prosecution or police the person responsible. An owner who stopped the property from being used has satisfied the branch even if the conduct continued somewhere else entirely.
The steps the statute itself counts
Section 983(d)(2)(B) does not define reasonableness, but it does supply a presumption. A person is presumed to have done all that reasonably could be expected where two things were done. The first is timely notice to an appropriate law enforcement agency of the information that led the person to know the conduct would occur or had occurred. The second is that the person, in a timely fashion, revoked or made a good faith attempt to revoke permission for those engaging in the conduct to use the property, or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use.
Two points about the structure of that provision are worth separating. It is a presumption, so an owner who did both things starts from a position the government must displace, and an owner who did neither is not thereby out of the statute; the general standard still governs. And the second element is itself in the alternative, which is what allows an owner asked by investigators to leave an arrangement undisturbed to remain inside the defense. Acting in consultation with the agency is treated as equivalent to withdrawing permission.
| Response after learning of the use | How it sits with the statute | What it does not by itself establish |
|---|---|---|
| Timely report to a law enforcement agency | The first element of the presumption | Nothing about permission, which the second element addresses |
| Revoking permission, retaking keys, changing locks | The second element in its plainest form | Timeliness, if the step came long after the information arrived |
| Beginning eviction or repossession | A good faith attempt to revoke permission | That the attempt was pursued rather than filed and abandoned |
| Leaving the arrangement in place at an agency's request | Reasonable action in consultation with law enforcement | The consultation itself, which has to be documented |
| Reporting but continuing to allow the use | Half of the presumption only | That anything was done to terminate the use of the property |
| Doing nothing because of feared retaliation | Potentially within the danger limit | That the belief was reasonable, or that safer steps were unavailable |
The limit for steps that create danger
The same subparagraph provides that a person is not required to take steps that the person reasonably believes would be likely to subject any person, other than the person whose conduct gave rise to the forfeiture, to physical danger. The limit is drafted with some care. It is keyed to a reasonable belief rather than to what later turns out to have been true, so an owner is judged on the situation as it appeared. It protects third parties, including household members and other tenants, rather than the owner's own comfort. And it excludes the wrongdoer from the class of people whose safety excuses inaction.
In practice the limit rarely removes every option. An owner who cannot safely confront a person on the premises can usually still report, still stop renewing an arrangement, and still ask an agency what can be done. Courts examining the provision have tended to ask what safer measures were available rather than treating danger as a complete answer, which is why a record that documents the threat and the alternatives considered carries more weight than an assertion that nothing could be done.
The recurring failure is an owner who calls the police, receives no immediate result, and then leaves the tenant, the borrower or the relative in possession. The statute asks about terminating the use of the property, and the presumption pairs notice with revocation for that reason. A report followed by continued permission satisfies one element and leaves the second unaddressed, which puts the claimant back on the open-ended standard with a record showing knowledge.
How much an owner must do
The statute fixes no quantity of effort, and the question of how far an owner must go has no settled answer. One reading treats the presumption as a practical ceiling: an owner who gave notice and withdrew permission has done what the drafters described, and demanding more converts a reasonableness test into a duty of successful policing. A competing reading treats the presumption as a floor available to owners who meet it, and asks in every other case whether measures actually within the owner's power were left unused, including the legal process an owner could have started and did not.
Neither reading has displaced the other, and the outcomes reported are difficult to reconcile because the facts control. Two variables recur. The first is timing, since the statute uses the word timely twice and delay is the easiest failure for the government to prove. The second is whether the owner continued to take a benefit from the arrangement, because rent collected or payments accepted after the information arrived sits badly beside a claim that the use was being terminated. The evidence behind both variables is usually gathered long before the merits, in the sequence described in the seizure of property and the basis it requires.
Two structural points close the subject. The branch is a merits defense, so it is available only to a claimant who filed on time and in the required form, a step covered in how a claim is filed and what it must contain. And it does not travel with the property while the case is pending, which is a separate statutory question addressed through the release of property for hardship during a case. The wider structure of the defense, including the different test for an interest acquired after the conduct, is set out in the innocent owner defense and its two forms.
Points to carry away
- The second branch of section 983(d)(2)(A) applies only after the owner learns of the conduct, and knowledge alone does not defeat the defense.
- The statutory test is what reasonably could be expected under the circumstances to terminate the use, not whether the use in fact stopped.
- Section 983(d)(2)(B) presumes the standard is met where the owner gave timely notice to law enforcement and timely revoked permission or acted in consultation with an agency.
- The presumption is a route to the defense rather than the only route, and other conduct may satisfy the branch.
- No owner is required to take steps reasonably believed likely to subject a person other than the wrongdoer to physical danger.
- The statute fixes no quantity of effort, and how far an owner must go remains unsettled and heavily fact-bound.
Questions readers ask
Must a landlord evict a tenant to keep the building?
The statute names no single required act. Eviction is one of the measures reasonably available to a landlord and courts will ask why it was not begun where it plainly was available. It is not an automatic requirement. What the branch asks is what reasonably could be expected in the circumstances, and circumstances include how quickly a lawful eviction can be started, whether the lease permits it, whether an agency asked that the tenancy continue during an investigation, and whether the step would expose someone to danger.
Does the branch help a claimant who bought the property after the conduct?
No. Reasonable steps belong to section 983(d)(2), which governs an interest held at the time the conduct occurred. An interest acquired afterward is tested under section 983(d)(3) instead, which asks whether the claimant was a bona fide purchaser or seller for value who did not know and was reasonably without cause to believe that the property was subject to forfeiture. Nothing done after the acquisition repairs a failure of that test, because the inquiry is fixed at the moment of acquisition rather than measured over the period of ownership.
Does an owner who suspects something have to act before knowing for certain?
The presumption is worded to reach less than certainty. It speaks of information that led the person to know the conduct would occur or has occurred, which sweeps in reports, complaints and observations rather than proof. Waiting for confirmation is therefore risky in both directions: an owner who claims to have known nothing may be met with the same information as evidence of knowledge, while an owner who acted on it is measured against what was reasonable given what was then known. The safer reading treats credible information as the trigger.
Sources
- 18 U.S.C. § 983 — General rules for civil forfeiture proceedingsSets the notice deadline, the claim deadline, the ninety-day complaint rule, the innocent owner defense, hardship release and proportionality review.
- 18 U.S.C. § 983 (official text)The official United States Code text of the civil forfeiture procedure statute.
- 21 U.S.C. § 881 — ForfeituresIdentifies the conveyances, proceeds and real property forfeitable under the controlled substances laws.
- 18 U.S.C. § 981 — Civil forfeitureLists the property subject to civil forfeiture and the circumstances permitting seizure with and without a warrant.
- 18 U.S.C. § 985 — Civil forfeiture of real propertyBars seizure of real property before judgment and sets the complaint, posting and notice sequence.
- Supplemental Rule G, Federal Rules of Civil ProcedureGoverns in rem forfeiture pleading, notice, claims, answers, special interrogatories and motions to strike.
Premier Defense Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Asset Forfeiture
Standing to Contest a Forfeiture
A claimant must show a colorable ownership or possessory interest in the property to satisfy Article III, and bare assertion is not enough. The statute defines an owner to include a leasehold, lien, mortgage, recorded security interest or valid assignment, and to exclude a nominee who exercises no dominion or control, a general unsecured creditor and an unexplained bailee. A motion to strike puts the burden of establishing standing on the claimant by a preponderance.
Proportionality Review and the Excessive Fines Question
Under 18 U.S.C. § 983(g) a claimant may petition the court to determine whether a civil forfeiture is constitutionally excessive. The court compares the forfeiture to the gravity of the offense giving rise to it. The claimant must establish gross disproportionality by a preponderance of the evidence at a hearing without a jury, and if the standard is met the court reduces or eliminates the forfeiture to avoid violating the Excessive Fines Clause.
The Innocent Owner Defense and Its Two Forms
Under 18 U.S.C. § 983(d) an innocent owner's interest is not forfeited under any civil forfeiture statute, and the claimant carries the burden by a preponderance of the evidence. An interest held before the conduct is protected by lack of knowledge or by reasonable steps to terminate the use. An interest acquired afterward is protected only by bona fide purchaser status, with a narrow exception for a primary residence taken by marriage, divorce, separation or inheritance.