Warrants to seize and sell property
Warrants to seize and sell property
A warrant is a court order telling the sheriff to do something. The sheriff may take your possessions and sell them for a creditor.
With debt collection, the court can issue a warrant to:
- take (seize) items you own
- take and sell your real estate.
Get legal advice fast if you have a warrant against you.
Warrant to take items you own
A warrant to seize property allows the sheriff to go to your home or business (if you own the business) and take non-secured items to sell. A warrant to seize property is valid for one year. Non-secured items are valuable things that you own outright, for example, your car. Your car will not be seized if it is your primary form of transport and it is worth less than $7600. You can keep household goods that help you live in basic comfort, for example, your fridge, television, washing machine, basic furniture and clothing.
When the sheriff arrives at your house, they will produce the warrant and explain that if you don’t pay the amount required, goods will be seized and auctioned to pay off the debt. Generally, the sheriff will allow you time to get the money, negotiate with the creditor or enter into an instalment order. The sheriff is required to ask you for consent to enter the house. However, they can resort to reasonable force and assistance to enter if you unreasonably withhold your consent, or they believe you are deliberately avoiding the sheriff.
A sheriff may only enter a residential property between 9 am and 5 pm.
The sheriff might take the goods, or just make a list of what is seized. Once the sheriff has listed the goods, you cannot sell or get rid of them.
After the sheriff takes your goods away, they will sell them. If you can pay, you can still try to negotiate with the creditor to stop the sheriff from selling.
Any goods taken will be sold at auction or by private sale unless you pay off the debt or negotiate an alternative course of action, such as an instalment order.
What happens after the goods are sold?
The sheriff will take out costs, such as removal, storage and auction fees, from the sale price and then pay the creditor the amount listed in the warrant. Any money left over should be given to you. The sheriff can also ask for the costs of entering the property, for example, if you refused entry and a locksmith was called.
If you still owe money, the creditor can keep trying to get the remaining debt.
What if the goods belong to someone else?
The sheriff cannot sell property owned by someone else. If such property is taken or listed then the owner of the property should write immediately to the sheriff. The letter should say that the property does not belong to you and include proof of ownership, such as photocopies of receipts. The sheriff may agree not to take the goods or may ask the court to decide ownership.
The person who owns the property can also make a claim in the Magistrates’ Court for an order stopping the sale of their property. If the sheriff takes property that belongs to someone else, get legal advice quickly.
Warrant to take and sell your real estate
This warrant means the creditor can sell any real estate you have a financial interest in. Get advice quickly if you are threatened with this warrant.
Real estate includes houses, apartments, land, holiday houses, farms and so on. The term ‘land’ is used here for all forms of real estate.
The warrant tells the sheriff to take and sell your interest in the land, so that the debt can be paid. Land can only be taken if the warrant is issued by the County or Supreme Court. The sheriff will tell you that a warrant has been issued. They will also tell you when the sale of the land will happen.
If you cannot pay the debt, the sheriff will sell your interest (the share you own, if it is owned jointly) in the land by auction. A reserve price must be set, based on the valuation of the land.
After the sale the sheriff must first pay out any loans mortgaged to the land, council and water rates, and costs associated with the sale of the land. Once these costs have been paid, the creditor’s claim is paid, including most legal costs. Any money left over will be paid to you.
What if I jointly own the land?
The sheriff can only sell your interest in the land. Your interest is the share you own in the property. The value of your share may be reduced by money you owe on a mortgage and for rates.
The buyer of your interest can be registered on the title along with any other registered owner. The buyer will have the normal rights and responsibilities of a land owner, including rights of entry and occupation.
Note: If another person, for example, a spouse, has an interest in the land but is not registered on the title, they should get legal advice quickly to protect their position. An unregistered interest is called an ‘equitable interest’.
What happens if the reserve price is not reached?
If the land does not sell for the reserve price, the creditor can get an order from the Supreme Court to sell at any price.
Can I stop the sale?
Until the land is sold, you can apply for an instalment order at the court where the original judgment order was made.
If you get an instalment order, tell the sheriff. Any further action by the sheriff or the creditor about that debt is stopped while an instalment order is in force and you are complying with it.
You should add the legal costs of the attempted sale of the land onto the judgment debt in your application for an instalment order.
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