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Difference between revisions of "Bailiffs, Court Bailiffs and Sheriffs"
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Bailiffs, Court Bailiffs and Sheriffs (view source)
Revision as of 23:30, 16 September 2018
, 23:30, 16 September 2018no edit summary
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Repossessions occur in two main instances: | Repossessions occur in two main instances: | ||
* '''Contractual repossessions:''' When there is default under a security agreement or lease agreement between a debtor and creditor.
| * '''Contractual repossessions:''' When there is default under a [[Security Agreements|security agreement]] or [[Leases|lease agreement]] between a debtor and creditor.
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* '''Judgment enforcement repossessions:''' When an unsecured creditor wants assets of the debtor seized and sold to satisfy a court judgment.
| * '''Judgment enforcement repossessions:''' When an unsecured creditor wants assets of the debtor seized and sold to satisfy a court judgment.
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There is a fundamental difference in the authority and the laws under which each action is taken: | There is a fundamental difference in the authority and the laws under which each action is taken: | ||
* '''Contractual repossessions:''' A bailiff carrying out a repossession under a security agreement or a lease agreement is repossessing on the basis of contractual rights governed by the [http://canlii.ca/t/8495 ''Personal Property Security Act''] (see the section on Security Agreements) or related legislation such as the [http://canlii.ca/t/84bv ''Repairers Lien Act''] (see the section on | * '''Contractual repossessions:''' A bailiff carrying out a repossession under a security agreement or a lease agreement is repossessing on the basis of contractual rights governed by the [http://canlii.ca/t/8495 ''Personal Property Security Act''] (see the section on [[Security Agreements]]) or related legislation such as the [http://canlii.ca/t/84bv ''Repairers Lien Act''] (see the section on [[Repairers' Liens|Repairers' Liens]]).
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* '''Judgment enforcement repossessions:''' A court bailiff carrying out a seizure for a judgment creditor does so under a court order governed by the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act''] and the [http://canlii.ca/t/8lld Supreme Court Civil Rules] (or the [http://canlii.ca/t/84cs ''Small Claims Act''] and [http://canlii.ca/t/8571 Small Claims Rules]).
| * '''Judgment enforcement repossessions:''' A court bailiff carrying out a seizure for a judgment creditor does so under a court order governed by the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act''] and the [http://canlii.ca/t/8lld Supreme Court Civil Rules] (or the [http://canlii.ca/t/84cs ''Small Claims Act''] and [http://canlii.ca/t/8571 Small Claims Rules]).
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==== Bailiffs ==== | ==== Bailiffs ==== | ||
Under the [http://canlii.ca/t/84mr ''Business Practices and Consumer Protection Act''], Part 7, '''bailiffs''' are persons who act on behalf of another party (for example, a creditor) to carry out tasks such as repossessing chattels. Bailiffs must be licensed under the Act and must go through the same licensing processes as collection agents do. Bailiffs can be refused licences or have their licences suspended by [http://www.consumerprotectionbc.ca Consumer Protection BC]. | Under the [http://canlii.ca/t/84mr ''Business Practices and Consumer Protection Act''], Part 7, '''bailiffs''' are persons who act on behalf of another party (for example, a creditor) to carry out tasks such as repossessing chattels. Bailiffs must be licensed under the Act and must go through the same licensing processes as [[Collection Agents|collection agents]] do. Bailiffs can be refused licences or have their licences suspended by [http://www.consumerprotectionbc.ca Consumer Protection BC]. | ||
In general, bailiffs carry out contractual repossessions — that is, repossessions on behalf of creditors who have a security interest over the goods of the debtor when the debtor defaults on payment on the security agreement. | In general, bailiffs carry out contractual repossessions — that is, repossessions on behalf of creditors who have a security interest over the goods of the debtor when the debtor defaults on payment on the security agreement. | ||
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Determining the validity of the authority under which the repossession is being attempted (that is, the right to make the repossession) is important when considering the use of force. In most instances, the right to repossess is clear, particularly in judgment enforcement situations. | Determining the validity of the authority under which the repossession is being attempted (that is, the right to make the repossession) is important when considering the use of force. In most instances, the right to repossess is clear, particularly in judgment enforcement situations. | ||
In contractual repossessions (including under security agreements, leases, and repairers’ liens), the validity usually arises from a breach of the contract by the debtor, such as failing to make a payment. Failing to make a payment usually means creditors can: | In contractual repossessions (including under [[Security Agreements|security agreements]], [[Leases|leases]], and [[Repairers’ Liens|repairers’ liens]]), the validity usually arises from a breach of the contract by the debtor, such as failing to make a payment. Failing to make a payment usually means creditors can: | ||
* invoke an acceleration clause (which means the debtor no longer has the right to pay in instalments) in the credit agreement and declare the whole balance of the credit agreement due, and
| * invoke an acceleration clause (which means the debtor no longer has the right to pay in instalments) in the credit agreement and declare the whole balance of the credit agreement due, and
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* take steps to repossess their security.
| * take steps to repossess their security.
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==== Extent of force allowed==== | ==== Extent of force allowed==== | ||
Assuming the authority is valid, the next issue is how much force can be used. A few basic principles are important to consider here: | Assuming the authority is valid, the next issue is how much force can be used. A few basic principles are important to consider here: | ||
* A bailiff or court bailiff cannot forcibly enter the debtor’s residence if it is clear that the debtor is refusing entry. If the bailiff enters, the debtor can ask that person to leave. The act of pushing past or physical confrontation by the bailiff may be considered a civil assault, for which the debtor could seek damages. The debtor’s resistance must be reasonable in the circumstances. Resistance with a weapon, for example, would not likely be seen as reasonable.
| * A bailiff or court bailiff cannot forcibly enter the debtor’s residence if it is clear that the debtor is refusing entry. If the bailiff enters, the debtor can ask that person to leave. The act of pushing past or physical confrontation by the bailiff may be considered a [[Tort Actions|civil assault]], for which the debtor could seek damages. The debtor’s resistance must be reasonable in the circumstances. Resistance with a weapon, for example, would not likely be seen as reasonable.
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* If entry is allowed, a bailiff or court bailiff is generally allowed to take authorized chattels.
| * If entry is allowed, a bailiff or court bailiff is generally allowed to take authorized chattels.
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* A bailiff or court bailiff can generally take the chattels of a debtor if the goods are outside a dwelling house (for example, a car in a driveway).
| * A bailiff or court bailiff can generally take the chattels of a debtor if the goods are outside a dwelling house (for example, a car in a driveway).
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* If either party wrongly uses force, they may be liable for criminal charges. In [http://canlii.ca/t/g18pq R. v. Doucette], for example, three bailiffs were convicted of assault when a struggle developed as they were trying to repossess a television from the debtor’s apartment.
| * If either party wrongly uses force, they may be liable for criminal charges. In [http://canlii.ca/t/g18pq R. v. Doucette], for example, three bailiffs were convicted of assault when a struggle developed as they were trying to repossess a television from the debtor’s apartment.
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For more on the extent of force allowed in a repossession, see the section on Tort Actions. See also the section on Recovery of Goods. | For more on the extent of force allowed in a repossession, see the section on [[Tort Actions]]. See also the section on [[Recovery of Goods]]. | ||
== Information gathering == | == Information gathering == | ||