In part three of our A to Z of enforcement, we cover letters M through to R, looking at how long recovered assets are held before being passed to the creditor, the giving of notice of intention to enforce, protecting older and other vulnerable people, a checklist of questions to ask before enforcement, writs of possession and recovering commercial rent arrears.
M - Money held by HCEO after enforcement
When the execution of a writ of FiFa (fieri facias) is successful, the High Court Enforcement Officer (HCEO) will have either been paid or will have seized and sold goods. The HCEO retains the money recovered “in suspense”, i.e. neither belonging to the creditor or debtor, for 14 days before payment is made to the creditor in case a winding up order or bankruptcy petition is issued against the creditor during those 14 days. If this happens, the money is returned to the Liquidator/Official Receiver to pay all creditors. After the 14 day period with no winding up order or bankruptcy petition, the money is paid to the judgment creditor.
N - Notice – when notice of enforcement has to be given
County Court Bailiffs are required to write to the judgment debtor before they visit. This can sometimes lead to assets being hidden or removed. With High Court Enforcement this does not occur, as there is NO requirement for HCEOs to give advance notice in any form before enforcement.
O – Older people and the vulnerable – enforcement thereof
Enforcement agencies must ensure that the genuinely vulnerable and socially excluded are protected. The potentially vulnerable include: elderly, people with a disability, the seriously ill, the recently bereaved, single parent families, pregnant women, unemployed people, those who have obvious difficulty with English and children. Enforcement agents must withdraw from domestic premises if the only person present is, or appears to be, under the age of 18, although they can ask when the debtor will be home. If the child appears to be less than 12, the enforcement agents must withdraw without making any enquiries.
P - Possession – writ of
Commercial landlords may apply for a writ of possession to repossess land and property on that land. The landlord, or their solicitor, must attend the repossession to show the actual property or land that is being repossessed. The HCEO enforcing the writ is not obliged to warn the building’s occupants that they are about to be evicted, but it is good practice to do so to avoid problems and prepare any special measures or support that think they might need in order to execute the writ. The HCEO is entitled to use force to enter commercial premises and may also use reasonable force to eject the occupants and other people found on the premises at the time.
Q - Questions to get answers to before obtaining a judgment
Do they have assets? You can ask the defendant to provide details of their business at court.
How old is the debt/judgement? You may enforce a judgment up to six years old. If you don’t have a judgment, you may still obtain one if the debt is no more than six years old.
Have you got all the details correct? Check the company/individual name. If it’s a “trading as”, put those details in too. Get the right address. Get the right amount - you can legitimately add interest at 8%, court fees and enforcement costs.
R - Rent arrears recovery (commercial)
The landlord may use the ancient common law remedy of distress for rent to recover commercial rent arrears. The landlord does not need to obtain a court order. He may simply instruct a Certificated Bailiff to enter the premises and seize goods (“distrain”) in order to sell them to recover the rent. While distress for rent only applies to rent, it has become common practice for landlords to include items such as service or maintenance charges under the banner of rent in the lease, so that these may be recovered at the same time.