From 6th April 2014, new legislation has come into effect to replace Bailiffs and Distress.
Tribunal Courts & Enforcement Act 2007
Taking Control of Goods Regulations 2013
The Taking Control of Goods (Fees) Regulations 2014
The Certification of Enforcement Agents Regulations 2014
The above represents a major change to approach by ensuring all actions by ‘bailiffs’ are under one set of regulations
After obtaining a liability order there are three stages
Administration / compliance stage
Commenced by passing to Enforcement Agent (fees can be charged…from the receipt by the enforcement agent of instructions to use that procedure in relation to a sum to be recovered up to but not including the commencement of the enforcement stage)
Enforcement stage
Commenced by service of a Notice of Enforcement (fees can be charged from …all activities relating to enforcement from the first attendance at the premises in relation to the instructions up to but not including the commencement of the sale or disposal stage)
Sale Stage.
Commenced by removal of goods for sale….(fees can be charged…..from the first attendance at the property for the purpose of transporting goods to the place of sale, or from commencing preparation for sale if the sale is to be held on the premises, until the completion of the sale or disposal )
Compliance stage is payable first
Enforcement Stage is payable pro rata
More than one enforcement power available against the same debtor - in a case where—
(a) the enforcement agent receives instructions to use the procedure in relation to the same debtor but in respect of more than one enforcement power; and
(b) those enforcement powers can reasonably be exercised at the same time.
“can reasonably be exercised at the same time” means in particular—
(a) taking control of goods in relation to all such enforcement powers on the same occasion; and
(b) selling or disposing of all goods so taken into control on the same occasion, except where it is impracticable to do so.
This is commenced by the service of a Notice of Enforcement
Minimum period of notice
Notice of enforcement must be given to the debtor not less than 7 clear days before the
enforcement agent takes control of the debtor’s goods.
Where the includes a Sunday, bank holiday, Good Friday or Christmas Day that day does not count in calculating the period.
The court may order that a specified shorter period of notice may be given to the debtor but court may only make an order) where it is satisfied that, if the order is not made, it is likely that goods of the debtor will be moved to premises other than relevant premises, or otherwise disposed of, in order to avoid the goods being taken control of by the enforcement agent.
The enforcement agent may not take control of goods of the debtor after the expiry of a period of 12 months beginning with the date of notice of enforcement.
Stopping the Clock…..
Where—
(a) after giving notice of enforcement the enforcement agent enters into an arrangement with the debtor for the repayment, by the debtor, of the sum outstanding by instalments (a repayment arrangement); ….clock stops
(b) the debtor breaches the terms of the repayment arrangement, the period begins with the date of the debtor’s breach of the repayment arrangement. – resets the clock
Extensions
The court may order that the period be extended by 12 months.
The court may make an order only—
(a) on application by the enforcement agent or the creditor;
(b) on one occasion; and
(c) if the court is satisfied that the applicant has reasonable grounds for not taking control of
goods of the debtor during the period referred to
The enforcement agent may not take control of goods of the debtor where—
(a) the debtor is a child;
(b) a child or vulnerable person (whether more than one or a combination of both) is the only person present in the relevant or specified premises in which the goods are located; or
(c) the goods are also premises in which a child or vulnerable person (whether more than one or a combination of both) is the only person present.
Where an item which belongs to the debtor is in use by any person at the time at which the enforcement agent seeks to take control of it, the enforcement agent may not do so if such action is in all the circumstances likely to result in a breach of the peace.
The enforcement agent may take control of goods of the debtor on any day of the week.
The enforcement agent may not take control of goods of the debtor before 6 a.m. or after 9 p.m. on any day.
This does not apply where—
(a) the court, on application by the enforcement agent, orders otherwise;
(b) goods are located on the debtor’s or another person’s premises which are used (whether wholly or partly) to carry on a trade or business and the premises (or part of the premises) are open for the conduct of that trade or business during hours that are prohibited under the above or
(c) the enforcement agent has begun to take control of goods during hours that are not prohibited and to complete taking control of goods it is reasonable
Similar to walking possession or close possession agreement
Who may enter into a controlled goods agreement
A controlled goods agreement, may only be entered into by an enforcement agent and—
(a) a debtor who is not a child;
(b) a person, aged 18 or over, authorised by the debtor to enter into a controlled goods agreement on the debtor’s behalf; or
(c) a person in apparent authority who is on the premises, where those premises are used (whether wholly or partly) to carry on a trade or business.
The enforcement agent may not enter into a controlled goods agreement with the debtor or another person who it appears (or ought to appear) to the enforcement agent does not understand the effect of, and would therefore not be capable of entering into, such an agreement.
The enforcement agent may enter relevant or specified premises only by—
(a) any door, or any usual means by which entry is gained to the premises (for example, a loading bay to premises where a trade or business is carried on); or
(b) any usual means of entry, where the premises are a vehicle, vessel, aircraft, hovercraft, a tent or other moveable structure
Restrictions on entry and re-entry to, and remaining on, premises
The enforcement agent may enter, re-enter or remain on the premises only if—
(a) the debtor is not a child; or
(b) a child or vulnerable person (whether more than one or a combination of both) is not the only person present in the premises which the enforcement agent proposes to enter or reenter.
Clear definition within the regulations
(a) items or equipment (for example, tools, books, telephones, computer equipment and vehicles) which are necessary for use personally by the debtor in the debtor’s employment, business, trade, profession, study or education, except that in any case the aggregate value of the items or equipment to which this exemption is applied shall not exceed £1,350;
(b) such clothing, bedding, furniture, household equipment, items and provisions as are reasonably required to satisfy the basic domestic needs of the debtor and every member of the debtor’s household, including (but not restricted to)—
(i) a cooker or microwave; (ii) a refrigerator; (iii) a washing machine; (iv) a dining table large enough, and sufficient dining chairs, to seat the debtor and every member of the debtor’s household; (v) beds and bedding sufficient for the debtor and every member of the debtor’s household; (vi) one landline telephone, or if there is no landline telephone at the premises, a mobile or internet telephone which may be used by the debtor or a member of the debtor’s household;
(vii) any item or equipment reasonably required for (aa) the medical care of the debtor or any member of the debtor’s household; (bb) safety in the dwelling-house; or (cc) the security of the dwelling-house (for example, an alarm system) or security in the dwelling-house;
(viii) sufficient lamps or stoves, or other appliance designed to provide lighting or heating facilities, to satisfy the basic heating and lighting needs of the debtor’s household;
and
(ix) any item or equipment reasonably required for the care of;
(aa) a person under the age of 18; (bb) a disabled person; or (cc) an older person;
(c) assistance dogs (including guide dogs, hearing dogs and dogs for disabled persons), sheep dogs, guard dogs or domestic pets;
(d) a vehicle on which a valid disabled person’s badge is displayed because it is used for, or in relation to which there are reasonable grounds for believing that it is used for, the carriage of a disabled person;
(e) a vehicle (whether in public ownership or not) which is being used for, or in relation to which there are reasonable grounds for believing that it is used for, police, fire or ambulance purposes; and
(f) a vehicle displaying a valid British Medical Association badge or other health emergency badge because it is being used for, or in relation to which there are reasonable grounds for believing that it is used for, health emergency purposes.
Where any goods of the debtor are also premises and are occupied by the debtor or another person as the debtor’s or that person’s only or principal home, those goods are exempt goods.
The minimum period before sale required is 7 clear days from removing controlled goods for sale.
Sale may take place on the day after removing controlled goods for sale where, if the sale were to take place after the expiry of the period of time referred to above, the goods would become unsaleable, or their sale value would be extinguished or substantially reduced due to the nature or any characteristic of those goods.
The minimum period of notice of the date, time and place of sale is 7 clear days before the sale of the goods.
Notice of the date, time and place of the sale must be in writing, be signed by the enforcement agent
Place of sale
Sale of controlled goods by public auction may only be held in a public auction house or on an online or internet auction site.
The sale may be held on premises where goods were found by the enforcement agent where those premises are occupied solely for the purposes of a trade or business.
Conduct of sale
Where controlled goods are sold by public auction, the auction must be conducted by—
(a) a qualified auctioneer; or
(b) where the auction takes place online or on an internet auction site, an auction provider independent of the enforcement agent.
Where an enforcement agent applies to the court for an order that the sale be by a method other than public auction, the types of sale the court may order include sale by—
(a) private contract; (b) sealed bids; (c) advertisement; and (d) such other method as the court considers appropriate.