Sheriff Powers

General

In principle, only one execution is issued on the basis of a judgment. Execution orders may be issued concurrently in a number of different counties, although they may not be acted upon concurrently.

Where the sheriff receives the whole or part of a debt by levy, he must countermand other orders.  If there is a levy under an order other than a seizure, the second order should not be issued until the first one has been returned.

A sheriff is bound to execute a proper and lawful order.  He must act under and within the scope of the order.  His duty is to execute as soon as reasonably practicable. The sheriff should execute an order within a reasonable time.

The sheriff’s duty is to seize goods reasonably sufficient to meet the relevant debt.  He may be liable for excessive execution, if he exceeds what is necessary, at the suit of the party affected.  If he does not act in good faith, he may be liable for exemplary damages.

If a judgment or order wrongfully induces the sheriff to seize particular goods by representing that they belong to the judgment debtor, the judgment creditor may be liable.

Powers

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.

Sheriff Procedure

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.

Sale of Goods

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.

A sheriff is obliged to prepare a list of items seized within 24 hours.  If practical, before removal, he should cause a list to be given to the defendant or other person in apparent possession.

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’s sale acquires a 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.

Breaking and Entering

The Enforcement of Court Orders Act provides that a sheriff may enter and break property without liability.  This includes any lands, house, close or other premises.  He may enter for the purpose of taking goods, animals or chattels.

Before breaking into a dwelling house or other building, he must make reasonable efforts to enter peacefully and without violence.  On breaking and entering a premises of someone other than the person against whom he enforces the execution order, he must have reasonable grounds for believing that some goods, animals or chattels of the latter person was on the premises or must, in fact, finds such goods, animals or chattels.

No action lies against a sheriff for the taking of goods, animals or chattels found in a house occupied by the debtor and alleged to be the property of a spouse of a child or other person residing there. There is a right of indemnity against the debtor, for the persons concerned whose property has been seized.

Seizing and Walking Possession

A sheriff may seize goods without physically taking them.  An assertion of an intention to seize the goods is sufficient.  Some positive acts must be done to assert control.

A sheriff may enter a “walking possession” agreement, in which case the custody remains with the debtor, but the goods are in the sheriff’s legal possession.  A request for such an agreement may be deemed sufficient to constitute a seizure, as it is an assertion of a right of control and possession under the court order.

Register

The Sheriff (Civil) registers record all executable judgments lodged stemming from the High Court, Circuit Courts and District Courts.

In the High Court, judgments of this nature are referred to as ‘orders of fieri facias or fifa.’ The Circuit Court, on the other hand, designates them as ‘execution orders against goods,’ and the District Court labels them as ‘Court’s judgments or decrees sent to the Sheriff or County Registrar to enforce.’

Sheriffs’ / Registrars’ certificates disclose entries that are extant, remain unsatisfied and still effecting individuals and/ or legal entities in association with the given premises.

Goods which may be Seized

Apart from a statutory authority, a sheriff may take goods which are the property of the judgment debtor only.  If there is a doubt, the sheriff may take goods and interpleading.  Interpleader is a procedure which requires third parties to claim ownership of goods in the possession or custody of the party who interpleads.

A sheriff may execute against movable goods, removable fixtures, and crops.  He may not seize against goods which have already been seized by another, such as by a landlord by distraint.

The Common Law Procedure Act 1853 allows monies, including cheques, bills of exchange, promissory notes, bonds, speciality debts and banknotes, to be seized by a sheriff.  Documents such as security for monies belonging to the person who is subject to the order may be seized.

Jointly owned assets may be seized, leaving the other co-owner to claim a share of the proceeds of the sale.  The sheriff may seize goods in which the debtor has an interest, which is capable of realisation by sale, notwithstanding that he is not the full or principal owner.

Goods subject to a security interest in favour of third parties may be seized, with payment of the proceeds in accordance with the interest to the person entitled to sale.  Goods over which the debtor holds a pledge which is irredeemable may be seized. A debtor will not generally have an interest in leased goods or in goods for which he holds a possessory lien only.

Exempt Goods

A range of goods are exempt from seizure by the sheriff. There are exceptions/exemptions for necessary wearing apparel, bedding, tools and implements of the debtor’s trade not exceeding statutory set values.

Goods and chattels in any lands held under a lease are not liable in execution unless the judgment creditor pays the landlord a sum of money not exceeding one year’s rent as is due for rent at the time taken.

Under a walking possession agreement, the sheriff may assume control of the goods while leaving them in the custody of the judgment debtor or another.  If there is no such agreement, the goods which have been seized may be deemed to have been abandoned or relinquished from seizure.

Sale

The sheriff may sell seized goods seized by auction, once two days has expired since execution, he is obliged not to delay unreasonably.  Subject to this, the sheriff has a quite broad discretion in relation to the manner of holding and sale of goods.

On sale, the sheriff may pay the proceeds to the judgment creditor.  He may not hand over the goods in specie. The creditor acquires no title or interest in them.  The judgment creditor has a right to recover monies on sale.

Where more than one order is lodged with the sheriff, they are to be executed in the order delivered.

The Enforcement of Court Orders Act provides that a person who purchases goods, animals or chattels taken by the sheriff in execution at a sale, take s good title.  This is so notwithstanding invalidity in or irregularity in the seizure of goods.

Once a writ has been executed by the sheriff, it technically binds the goods of the judgment debtor.  However, a third-party who purchases before the seizure, for good consideration without notice is not affected by reason of a provision in the Sale of Goods Act.

Until the goods are sold by the sheriff, the judgment debtor may pass good title, subject to the above provisions.  However, once the goods have been seized, the protection is not available as they do not remain unexecuted in the hands of the sheriff for the purpose of the Sale of Goods act.

Completion of Execution

Upon completion of execution, the judgement creditor may retain proceeds even as against a liquidator or assignee.  The execution must have been completed, before the commencement of the insolvency process. Completion of the process requires seizure and sale.

Notice may be served on the sheriff that insolvency has commenced. In this case, the sheriff is obliged to deliver goods and monies seized in satisfaction of execution, but not delivered.  He is entitled to the costs of execution as a first charge under the Companies Act. The rules in respect of bankruptcy are not as clearly set out, as in the Companies Act provision, but in broad terms, the same principles are likely to apply.

Under the Bankruptcy Acts, when goods have been seized, sold, and monies paid to the sheriff or county register, the monies must be retained for 21 days.  If within that period the sheriff or creditor or county register received notice for adjudication, they must be paid or surrendered to the Official Assignee.

Fees

There is a statutory schedule of fees payable on issue of a writ of Fieri facias. Charges are paid by the party seeking execution.  However, the fees may be recovered by the sheriff from the party against whom execution is directed for repayment to the judgment creditor.  The sheriff is not entitled to a fee for execution where no goods are returned.

The fees payable include

• poundage fee on a seizure and sale of person\’s property,
• fee for execution by a court messenger;
• travelling expenses;
• expenses of removal to a place for safekeeping;
• expenses for sustenance and maintenance of animals,
• expenses for storage and safekeeping pending sale; and
• expenses for sale of a property.

Where payments are tended to release the goods, the sheriff is entitled to require payments of poundage fees and expenses, reasonably or necessarily incurred in removing and storing goods.

Seizing Leasehold Interests

A sheriff may seize a “chattel real” including a lessee’s interest under a lease.  The interest has to be a legal interest.   In practice, this was rarely done, and the power was removed in respect of residential property, by the Land and Conveyancing Law Reform Act, 2009,

At common law, under a writ of fi fa, property could not be seized unless it was such as would go on the owner’s death to his executor, and not his heir. The  requirement that it should descend to the executor excluded freehold interests in land (and fixtures appurtenant thereto) but not leaseholds or chattels. The rules as to the devolution of freehold and leasehold property on the death of the owner were assimilated by the Administration of Estates Act 1959 and the Succession Act 1965.  There has, however, been no reported decision in Ireland as to whether the sheriff’s power to seize land is still confined to leaseholds.

The sheriff’s power to seize land is, accordingly, confined to unincumbered non-residential land (since where the land is mortgaged the mortgagor ceases to be the legal owner) and, possibly, leasehold land.

There are further limiting factors which render the seizure by sheriffs of land comparatively rare. The seizure by the sheriff does not vest the legal ownership in him. While he can sell the land, he can only sell whatever title the judgment debtor has2 and in the case of unregistered land he has no means of ascertaining this. Nor is he entitled to possession of the land and consequently cannot assure a purchaser from him of vacant possession.

Prior to the 2009 Land Act Reforms, a sheriff could seize all leasehold interests. The 2009 Act limits the power to non-residential property. He could not seize or sell a freehold interest or an equitable interest. He had the power to seize an equitable interest, where the whole beneficial interest due to the judgment debtor. This would not be so, in the common case of mortgaged property. Such seizures are very rare in modern times.