Land & Goods
The EJO may make an application imposing a charge on land to secure the recoverable amount of a debt. The creditor must then make an Application to sell the land to the Court.
The Charging Order may be charged against any legal or equitable interest which the defendant has. The EJO gives notice to the debtor or creditor of its intention to make a Charging Order against the interest and informs them that the Order will be made unless either object within eight days. If either object, the matter is referred to the Master for determination.
It has been held that spouses and other persons with interests in the matrimonial home should be given notice. Notice must also be given to co-owners.
The EJO has a general discretion in relation to granting Charging Orders. Factors taken into account are whether the debtor has a chargeable interest or whether it is valuable.
Personal circumstances are taken into account in deciding whether the Judgment is enforceable and which enforcement position is best. The Order is not made when the debtor is insolvent or an arranging order is more appropriate. The onus lies with the debtor and creditor to bring the matter to the attention of the EJO. The Order charging land may be absolute or subject to conditions.
A Charging Order only takes effect when registered against the land in the Land Registry or Registry of Deeds. The position in terms of priority depends on the date of registration. The 1992 order set aside the position regarding equities.
Enforcement of an Order requires Application to court for a sale of land; leave of the High Court or County Court is required. The Courts have the discretion to refuse sale or defer sale subject to conditions. They may refuse or delay the sale on account of hardship. Further Application would be required to Court to obtain possession.
There is provision for the making of other Charging Orders over assets other than property. This includes stocks, shares, government stocks.
In the first instance, an application is made to show cause why an Order charging the security is made conditional. The Order is conditional and is served to give the parties an opportunity to show cause why it should not be made.
By a Seizure Order, the EJO can remove and sell the debtor’s goods. An Order for procedure can be applied for once the EJO has decided the debtor has property which is subject to seizure.
The Application is made by the Master on the Application of the chief enforcement officer. There is discretion to postpone the Seizure Order where instalments or an AEO could discharge the debt within a reasonable time.
The Seizure Order converts the above classes of assets to the EJO. Exemptions include household, wearing apparel, furniture, bedding, household equipment, and this list is more extensive than that applying in England or the Republic of Ireland. Tools valued at £200 or greater are excluded.
Once a Seizure Order is made, it must be served personally, together with a notice warning that the goods may be sold after an interval of eight days, subject to them being advertised for sale. Unless the Judgment is paid, the Seizure Order allows the enforcement officer to seize the goods to defray the recoverable amount.
Goods may be removed for sale under a Seizure Order. The debtor may apply to the Master for relief against the Seizure Order. When property is moved, the Seizure Order may be suspended, or execution postponed. If payment is made, seizure may be suspended.
Property sold under a Seizure Order may be sold under the direction of the EJO. Perishable goods must be sold forthwith. Other goods are valued within five days. There must be an auction after public advertisement unless the EJO is of the opinion that the best interests of the parties are served by disposing of the goods otherwise. Notice must be given to the parties of the intention to dispose of property this way.
Bills of exchange, bonds, promissory notes may be seized if they are held as security for the recoverable amount. A creditor or the chief enforcement officer may sue in the name of the debtor for the recovery of these sums. Third-party purchasers of seized property are protected. Where other parties have an interest in seized property, they may apply to have their interest determined.
Hearings to determine the interest of a party are before the Master, who may refer the matter to the High Court or County Court. If the assets have been sold, and the proceeds retained, an Order can be made for payment to the claimant representing his interest. If the property has not been sold, an Order may be made for it to be delivered to the claimant upon payment of the debtor’s value. Property may be sold, and the claimant may pay the value of his interest.