Definition
Recapture carries distinct meanings across admiralty, property, tax, and landlord-tenant law. Context governs which meaning applies.
1. Admiralty / Law of War (historical primary meaning): The retaking, by a friendly or allied force, of a vessel or cargo previously seized as a prize by an enemy. Once recaptured, the property's legal fate — whether restored to the original owner or treated as a new prize — depended on national law and the timing and circumstances of the recapture.
2. Self-help recovery of persons or property: The right of a person to retake, by reasonable force and without legal process, a person wrongfully detained or personal property wrongfully taken from them, provided the retaking occurs promptly and without breach of the peace. This is the common-law doctrine of recaption, and "recapture" is used interchangeably with it in older sources.
3. Tax recapture: The government's retroactive collection of tax benefits — deductions, credits, or preferential rates — previously granted to a taxpayer, triggered when the conditions justifying those benefits are no longer met. Common contexts include depreciation recapture on the sale of business property, and recapture of investment tax credits or historic rehabilitation tax credits upon early disposition or disqualifying use.
4. Landlord-tenant / commercial leases: A landlord's contractual right to terminate a tenant's lease and reclaim the premises when the tenant seeks to assign or sublease. A recapture clause gives the landlord the option, upon receiving a tenant's assignment or sublease request, to take back all or part of the space rather than consent to the transfer.
Common Language
Modern common usage (Wiktionary): The act of capturing again; that which is captured back; a prize retaken; also, the retroactive collection of taxes not collectible at the time.
Historical common usage (Webster's 1913): The act of retaking or recovering by capture; especially, the retaking of a prize or goods from a captor. That which is captured back; a prize retaken.
The common meaning tracks the admiralty sense closely and is not misleading on its face. The significant gap is in modern legal practice, where "recapture" most frequently appears not in any maritime context but in tax law and commercial leasing — meanings entirely absent from older general dictionaries and underrepresented even in the historical legal dictionaries.
Common Confusion
Recapture and recaption are used interchangeably in older sources. In modern usage, recaption refers specifically to the self-help right to retake persons or chattels, while recapture more commonly appears in tax and leasing contexts. A researcher encountering "recapture" in a nineteenth-century property treatise should assume the self-help or admiralty meaning, not a tax or lease meaning.
Tax recapture is sometimes confused with clawback. Clawback typically describes contractual recovery of compensation or payments already made (commonly in employment or government contracts), while recapture is the IRS mechanism for recovering tax benefits through inclusion in income or additional tax liability. The mechanisms and legal bases differ.
Recognized Forms
/SUBTYPES
Admiralty recapture: Governed historically by the doctrine of postliminium and by prize law. The English Naval Prize Act 1864 and early American statutes (notably the Act of March 3, 1800) set specific rules on restoration to the original owner and salvage compensation.
Recaption (self-help): The common-law right to retake wrongfully taken property or a wrongfully detained person. Subject to strict limitations: the retaking must be immediate or nearly so, must not involve undue force, and — for entry onto another's premises — the outer door must generally be open or access otherwise lawful.
Depreciation recapture (tax): On sale of depreciable business or investment property, prior depreciation deductions may be recaptured as ordinary income or at preferential rates, depending on asset class and applicable IRC provisions.
Credit recapture (tax): Tax credits (including historic rehabilitation tax credits and low-income housing tax credits) are subject to recapture if the property is disposed of or ceases to qualify within a specified holding period.
Lease recapture: A landlord's exercise of a contractual recapture clause upon a tenant's request to assign or sublease, resulting in termination of the existing lease and direct assumption of the space by the landlord.
Why It Matters in Research
This term is a documented research trap because its dominant meaning has shifted completely across time. Historical legal dictionaries — including both editions of Black's surveyed here — define recapture almost exclusively in the admiralty and prize-law sense. A researcher using those sources as a guide to modern usage will be misled. Today, "recapture" in transactional, tax, and real estate practice refers to credit or depreciation recapture and lease recapture clauses; the admiralty sense is functionally obsolete in domestic practice.
In the Law Mind corpus, recapture appears across at least three distinct research tracks: (1) historical admiralty and prize law, where postliminium doctrine and the timing of recapture determined ownership; (2) tax law, where recapture provisions interact with depreciation schedules, credit holding periods, and disposition events; and (3) commercial real estate, where recapture clauses are heavily negotiated lease provisions that affect assignment rights, subletting economics, and portfolio management. These tracks do not cross-reference each other and a keyword search will surface all three without distinguishing them.
When researching the self-help recaption doctrine in older American sources, look for "recaption" and "recapture" as interchangeable terms, and pay attention to whether the source is addressing personal property, real property, or persons — the rules differ and courts did not always distinguish them cleanly.
Jurisdictional variation matters most in the tax recapture context. Federal recapture rules under the IRC set the floor for depreciation and credit recapture, but state tax treatment of recaptured amounts varies. In the lease recapture context, enforceability and scope of recapture clauses are governed entirely by state contract and property law, with no uniform rule.
Historical Dictionary Support
The historical sources surveyed reflect the admiralty-first understanding of recapture. Black's (both editions) leads with the prize-law definition and adds nothing beyond it. Rapalje & Lawrence provides the most useful historical detail, connecting recapture to the postliminium doctrine and noting that the rule on restoration to the original owner varies by nation — an important research signal for comparative historical work. Bouvier covers both the admiralty sense and the self-help recaption sense in separate entries, making it the most comprehensive of the historical sources on scope. Anderson's simply cross-references CAPTURE without independent content.
None of the historical dictionaries addresses tax recapture or lease recapture clauses. This is expected — both are twentieth-century legal developments — but it means the historical shelf is of limited utility for any modern recapture research outside admiralty history.
Bouvier's admiralty entry references the Act of March 3, 1800 as the early American statutory framework for recaptured vessels, and cites 3 C. Rob. 224 for the proposition that fellow citizens and allies are under an obligation to attempt rescue when success is reasonably probable. The self-help entry (citing 8 Bingh. 186) establishes that peaceable entry onto the premises of a non-participant harboring a wrongfully detained person was recognized even in early nineteenth-century English common law.
Jurisdictional Note
Federal tax recapture rules are uniform under the IRC but state income tax treatment of recaptured depreciation and credits varies. Lease recapture clauses are creatures of contract and state property law; their enforceability, scope, and interaction with anti-assignment provisions depend on the jurisdiction where the property is located. The admiralty and self-help senses of recapture were historically governed by federal prize law and common law respectively, but the self-help doctrine's modern limits — particularly as to force and entry — differ by state.
Encyclopedia Cross-Reference
Assignments and Subleases in Commercial Leases — Consent Requirements and Recapture (The Law Mind Real Estate Transactions & Construction Encyclopedia)
Historic Tax Credits — Rehabilitation Standards, Certification, and Recapture (The Law Mind Real Estate Transactions & Construction Encyclopedia)