There is a sheriff or County Registrar with the powers of a sheriff for each county. The sheriff has the power to seize the debtor’s goods to enforce a court order for money due. The procedure is commenced by the creditor or his solicitor sending details of the court order, together with certain other documents and fees to the sheriff or County Registrar. A sheriff executes court orders in the order in which they are submitted to him. Therefore, the earlier order sent will have priority in claiming any proceeds.
The sheriff has the power to seize all movable goods, monies, shares, bank notes, and certain other assets. There are limited items which are immune from enforcement, such as clothes and certain tools to a limited value. If goods are seized, that are not the debtor’s, then there are procedures for their owners contesting the matter. A sheriff can enter a property to seize goods and is immune from legal action in so doing.
Generally, the sheriff will write to the debtor informing him that he holds a court order and requesting payment. A court official or member of sheriff’s staff will be sent out to enforce the order. There have been long delays and frequent lack of success in having judgments enforced through the sheriffs offices in recent years.
There are only sheriffs offices in Dublin and Cork. In the rest of the country, the County Registrar ’s office, which is the Circuit Court office, undertakes the functions and powers of the sheriff. A sheriff is paid on a commission basis and may be entitled to expenses. The County Registrar is a civil servant and is not paid on a commission basis.
The sheriff and his staff have immunity from legal action when entering a property to take goods and other items for the purpose of enforcement. Before entering a dwelling house or outbuilding, the sheriff must make reasonable efforts to enter peaceably without violence. If he enters the property of someone other than the debtor, he must have reasonable grounds for believing there are goods belong to the debtor there.
No legal action can be taken against the sheriff for seizing goods allegedly the property of the debtor’s spouse or other residents of the property. In this case, the right to take action is against the debtor.
There are statutory fees are payable to sheriffs. They are paid initially by the creditor. However, they may be charged as part of the cost of recovery. The sheriff is not entitled to a fee for execution when he makes a return of “no goods”.
The following fees are levied against the debtor as part of what is to be satisfied from the seizure itself.
- poundage fee on a seizure and sale;
- travelling expenses;
- fees for the execution by the court messenger;
- expenses of removal and safekeeping;
- expenses for sustaining cattle feeding cattle and animals;
- storage and safekeeping expenses;
- expenses of sale.
In practice, the sheriff may be prepared to enter agreements and arrangements with debtors. The sheriff may seize goods but this may not necessarily mean taking physical possession of the goods. The sheriff can enter a “walking possession agreement” with the debtor by which possession remains with the debtor but on behalf of the sheriff.
The sheriff is obliged to execute an order as soon as reasonably practicable. There is no obligation to give prior warning of the intention to levy enforcement. However, sheriff and County Registrars usually give notice with a view to securing settlements. The sheriff and its officers have a duty to make an inventory of goods within one day and if practicable give it to the judgment debtor.
Most tangible goods, animals, growing crops, severable fixtures, money and negotiable instruments and jointly owned goods may be seized. The co-owner is entitled to claim his share. Hired or leased goods can be seized to the extent that the debtor has an interest.
The sheriff must sell the goods in order to realise their proceeds. They may be sold after the expiration of 48 hours. The sheriff enjoys a wide discretion in relation to storage impounding and sales. Completion of the process occurs when the proceeds of the sale are given to the creditor. Until that time, the execution is incomplete and the process may be suspended by a petition for bankruptcy or winding up.
If there are disputes regarding ownership of goods seized by the sheriff, there is a special procedure to resolve the dispute known as interpleader. For example, a spouse could claim that furniture is jointly owned or it might be leased or on hire purchase.
Where goods have been wrongfully seized, at the direction or on the information of a creditor, the third party may have a right of action against the creditor to the extent of any benefit received as a result of a wrongful seizure.
A purchaser in a sheriff sale acquires good title. Execution is completed by seizure and sale. The sheriff must deliver money received in satisfaction of execution to the creditor. Where goods have been seized and sold, all monies paid in satisfaction of the execution order must be retained with her 21 days. This is a requirement of bankruptcy legislation. They must be paid to the bankruptcy official if the sheriff receives notice of bankruptcy of the debtor in that period.