The Bailiff

[sukkie]

I am studying credit control and cannot find the info I need. If a bailiff is sent to a customers house and gets in can he just help himself. What happens if the customer lives in rented furnished accommodation so the furniture belongs to the landlord and for example, the TV belongs to her brother who has nothing to do with the debt. Is the bailiff allowed to take this?

[Buenchico]

In general, a bailiff has no right to seize items which are not the property of the debtor. In certain limited circumstances, however, a bailff may be able to seize goods which are still subject to an HP agreement. Otherwise, baliffs are normally not permitted to take goods belonging to a third party even if there is joint and several liability for the debt between the named debtor and the third party. (i.e. if the warrant doesn't name the third party then the bailiffs cannot seize his goods).

Chris

[gammaray]

I was quite surprised to learn recently (not through personal experience I'm happy to say) that a bailiff has the right of entry into a property to seize goods. I always thought that only the police (under the execution of a warrant) could enter a premises.

[Hgrove]

Answer in 4 parts. (1). When an enforcement officer (bailiff) seizes goods from the JD (judgment debtor), a claim may be made either by the JD or by some other person that the goods belong to this other person. The enforcement officer will institute interpleader proceedings, which are proceedings by which a person who holds certain goods which are claimed by two or ore persons but who does not himself claim the property, protects himself from legal proceedings by having the title to the goods decided. This would apply, for instance, where the enforcement officer seizes a motor vehicle which he then finds is subject to hire purchase, or where he seizes goods which are claimed by the JD�s spouse.

[Hgrove]

(2) Any person making a claim in respect of goods must give notice of this claim to the enforcement officer. The enforcement officer gives notice to the JC, who has seven days to consider whether he accepts or disputes the claim. There the JC disputes the claim, the enforcement officer must then apply to the court. The application does not have to be supported by affidavit but the person making the claim must, within 14 days of service of the application on him, service on the JC and the enforcement officer an affidavit describing the goods claimed and setting out the grounds upon which such a claim is based.

[Hgrove]

(3) The hearing is before the District Judge, who may summarily determine the question in issue between the parties or order that the issue between the parties be stated and tried directing which of the parties is to be the claimant ad which the defendant. In either case, where the claimant fails, the enforcement officer will be entitled to costs although the JC will have to pay the enforcement officer�s fees fist and recover the costs against the claimant.

[Hgrove]

(4) The court is empowered to order a sale of the goods taken in execution pending the determination of the interpleader proceedings: this will be appropriate where the goods in question are perishable. It is usual for an order to be made for payment into court pending the proceedings.

[Hgrove]

I have copied the above from the ILEX manual "Civil Litigation", Chapter 38. There is a typo in part (1), "ore" should of course read "more".

[WoWo]

It should be noted in response to gammaray's post that while they have the right to entry they can't enter a property illegally, i.e. knocking down the door/breaking a window etc.

But if you go out and leave a door unlocked/window open thet are allowed to enter.

[gammaray]

That's right Wo Wo, I should have qualified my comments with that. Although they can go through open doors etc unchallanged they can't, as you say, force an entry. I was still quite surprised about just how much power they have though.

[themas]

It is correct that they cannot force entry (or push past someone at the door) the first time they go, unless it is to enforce a fine rather than a civil debt. If they do get in (through an unlocked door or window) the first time, they can take "walking possession" of goods and can return later to remove them. They can break in to do this if necessary.

I think that if the goods they have claimed belong to someone other than the debtor, the owner only has 5 days to claim them back before the bailiffs can sell them.