What are Attachment Orders?

This article explains what an attachment order is, in particular:

  • who can execute it and when;
  • what is the procedure for executing an attachment;
  • what property can be attached;
  • what effects an attachment order has; and
  • what you can do to protect your property

What is an Attachment Order?

An attachment order is an order that is executed over your moveable property, which means property like cars, but not your home or land. It also cannot be used against property contained in your home.

It can, however, be used against property that is stored on business premises, in a garden shed, or a lockup or inside a vehicle.

Where you live in a mobile home, it can be attached, but  not if it is your principal or sole residence.

For a full list of items that sheriff officers cannot, see. here.

When can an attachment order be made?

An attachment order can only be executed by a sheriff officer or messenger at arms.  That means no-one else can take your possessions off you, without your permission.

Creditors cannot take your property without your permission.

Attachment orders also cannot be made:

  • on a Sunday;
  • a day which is a local public holiday; and
  • not before 8am or after 8pm

unless a judge says otherwise.

They also can only be made when someone you owe money to has went to court, obtained a court order against you or served you with a charge for payment that has expired.

There are rules where the summary diligence or summary warrant procedure is used, as this does not require a traditional court hearing, but charge for payments must still be served.

How is an attachment order executed?

Where a sheriff officer executes an attachment order, he has the right to presume the property in your possession is yours, even if he makes verbal enquiries of others present and they deny the property is yours.

Where property is owned in common, Sheriff Officers can still attach the property, but when it is sold they must give the other owner their share of the proceeds.

When a sheriff officer executes an attachment order, he must immediately complete an attachment schedule, stipulating what property has been attached and the value of the property. He must then give a copy of the schedule to the debtor. He does not remove the property immediately, unless he has obtained a court order from the judge beforehand allowing him to do so.

The sheriff officer then must report the attachment to the sheriff (judge) within 14 days.

What property can be attached?

The most common property to be attached by a sheriff officers are cars, however, they can attach most items that are kept outside the home or business property, even if it is kept in business premises, lockups, garden sheds or locked vehicles.

Where the property is kept in locked premises, the sheriff officer can open shut and lockfast places, which means he can get a locksmith to open the premises.

The items a sheriff cannot take, however, these include:

  • any implements, tools of trade, books or other equipment reasonably required for the use of the debtor in the practice of the debtor’s profession, trade or business and not exceeding in aggregate value £1,000;
  • any vehicle, the use of which is so reasonably required by the debtor, not exceeding in value £3,000;
  • a mobile home which is the debtor’s only or principal residence;
  • any tools or other equipment reasonably required for keeping in good order and condition any garden of the debtor; and
    any money (although this doesn’t apply to antique money)

Sheriff officers may attach money, but only if it is not held in a debtor’s home. To attach money, they must use another form of diligence known as a money attachment.

Unlawful acts after and attachment

After an item has been attached, but not yet removed for auction, it is illegal for the debtor or any other third party to remove the item from the place it was attached. They also cannot wilfully damage the property or allow anyone else to. If the item is stolen, the theft must be reported to the sheriff officer, with information about any insurance claims the debtor is making for the stolen item.

Where the item has been removed, gifted or sold to someone else or wilfully damaged, the debtor or third party that has done so may be guilty of an offence and also a further attachment may be ordered at the debtor’s property.

Redeeming an item before the sheriff officer removes it

A debtor can redeem an item that has been attached within 14 days of it being attached. The amount that must be paid is the value that the sheriff officer places on the vehicle. On redemption the sheriff officer must give the debtor a receipt: on receipt of which, the attachment ends.

Where the property is owned in common with a third party, the third party can redeem the debtor’s share of the property. On payment of the debtor’s share, ownership of the debtor’s share of the property transfers to the third party.  The attachment ends when the sheriff officer gives the third party a receipt for the money they have paid.

Removing the item that is subject to attachment

After the sheriff officers report of the attachment is received by the Sheriff, the sheriff officer can give notice to the debtor that the property will be collected for auction. The sheriff officer is then allowed to come on that day and remove the item for attachment.

It will then be sold at auction.

Returns where there is a surplus or the property is owned in common

Where the property is owned in common with someone else, the sheriff officer must pay an amount that equals the percentage of the property that the third party owns in the property from the proceeds of the auction.

Where the sale of the item is sufficient to pay the debt that is owed in full, with interest and also any legal expenses that are owed and the cost of the attachment itself and there is a surplus of funds remaining, this should be repaid to the debtor.

Comments

  1. Angela

    Hi this is quite long winded, we rented a unit (5 years) where we had no end of issues with tenants from another unit where there was a danger to life and police were called to be told it’s a civil matter as it was private land, this resulted in us asking the landlords agents how much notice we needed to give as we could no longer function there and we were told under the circumstances, none (we did not get this in writing). To cut a very long story short the landlord agreed to let us out of the lease if we paid up till May 2020 (this was October 2019) I agreed to pay at £1000 per month, they then hit us with £6000 of “dilapidation’ s. We ourselves completed all the works the said and paid the 1st £1000 as agreed only to get an email stating the dilapidation were in excess of £20k, this has now resulted in an order for £16k plus, the sherif officers have attached our company vehicles twice now, the last time today, we have made an offer to pay at what we can afford which has been rejected and don’t know where to go from here other than liquidate, the debt has gone up by circa £6000 since the last attachment (few months) and they have stated they are now going to hold us to the full term of the lease (2022). We have never been due anyone any money before so don’t know where to take it from here and so far it has cost us circa £5k in legal fees

    1. Scottish Adviser Post author

      Hi Angela

      Thank you for all the information you have provided. Obviously, there is a lot I cannot comment on as I would have a lot of questions I would need to ask first.
      Basically, though I think you probably need to take legal advice. There are multiple issues that need to be looked at, including whether the landlord can hold you to the lease and also how they are arriving at these estimated costs for the dilapidations.
      There is then issues how they have been able to instruct Sheriff Officers. Have they done this because they have taken you to court, or have they registered the lease agreement for preservation and execution that allows them to do Summary Ďiligence?
      Also there is a question about possible solutions if you are liable for the debt. Are you a Limited Company? Are the vans owned by the Limited Company? Was it the Limited Company that signed the lease? If so, the solution may be liquidation but there may be other options too, such as Company Voluntary Arrangements. Or is it a Partnership and if so, what type. Or are you a Sole Trader? These then allow you to explore other possible options.
      Due to the complexity of all this and the multiple legal issues, you do need to take legal advice. It will cost, but it may make the difference between having a business at the end or not.
      Also there may be ways to keep the business, but let the Company go into liquidation. Again this probably needs an insolvency practitioner (IP) with corporate insolvency experience.
      I would be looking to get advice from an IP also, even if you get legal advice and they recommend court action, as that can be expensive, whereas an IP may be able to suggest an alternative route that allows you to cut your losses and move on.

  2. David

    Hi,

    I received a Charge for Payment last week.

    I was advised to apply for a Statutory Moratorium with the AIB, which has been accepted. Can the Sheriff Officers still attach my stuff and carry out other recovery action, as the Charge for Payment was served before the moratorium was accepted, or does it give me the 6 weeks breathing space?

    Thank you in advance

    1. Scottish Adviser Post author

      Hi David

      The Statutory Moratorium currently is providing 6 month protection because of the Covid 19 Crisis.

      It normally is 6 weeks.

      It will protect you from any future Diligence such as Attachments and Wage Arrestments.

      It can usually normally stop Charge for Payments, but as that has been done for this debt it is too late, but it protects you from further action for the 6 months.

      It is best to contact the Sheriff Officers and let them know you have a registered a Moratorium, as they should check, but don’t always.

      You can get copy of your Moratorium from the Moratorium Register. See here

  3. Phil

    Hi

    A small van was issued with a Parking Penalty Charge by a council on the south coast of England. The van is registered with a Scottish Limited company as it’s only vehicle and the company office is my home in Scotland. The company has been in a negative trading position for several years ‘in a labour of love’.
    Would the Council in the above circumstances have a legal right to enforce collection in Scotland?

    1. Scottish Adviser Post author

      Hi Phil

      Yes they could enforce the debt in Scotland.

      As part of the process they can register the debt through the English Courts, then register it with the Scottish Courts, adding on the cost of doing so onto the amount owed.

      They can then enforce the debt using Scottish Sheriff Officers and Scots law of Diligence

  4. Diane

    Hi.

    Could you tell me if Sheriff Officers can remove goods from a Limited Company even though the goods in the business premises would not be anywhere near the value of the debt?

    My daughter won an Employment Tribunal against her previous employer which is a very small nursery and as such, only has 1 computer, toys, baby changing mats etc, kitchen appliances.

    The owner is rarely at the premises therefore her car is unlikely to be outside the premises (and I assume it will be against her name, not the business).

    As it is a nursery, if officers began removing goods whilst the children were there, the business could not operate or care for children properly, therefore owner would probably pay up or all the parents would need to be called to collect their children.

    The owner is very well off so I’m sure she could afford to pay up.

    Also, if the parents pay their nursery fees into a bank account in the owner’s name and not in the business name (employment decision is against company, not owner) can officers arrest funds in there?

    Thank you

    1. Scottish Adviser Post author

      Hi

      The quick answer is they could execute an Attachment, but as you say the value of the goods would probably not be worth much.

      Your daughter would, however, have to pay for the Attachment, so it would be a risk for her. They may choose to pay, they may not.

      Sheriff Officers are not going to do anything that jeopardises the welfare of children though. They are Court Officers.

      What you are describing is a common problem, where someone get a tribunal order,then hides behind acting as a sole trader or having all his assets kept in his personal name. He could even claim he is now operating as a sole trader or under another business name, to avoid the people he owes money to. It’s not unusual and lots of business are liquidated by HMRC each year for basically just folding, owing tax debts, whilst the owner sets up a new business and starts again.

      I would call a Sheriff Officer and maybe ask what they think, but sending them out maybe the last opportunity you get to recover this debt,as the owner,if not already,may just begin operating as a sole trader or under another company name.

      1. Diane

        Hi.

        They are operating as a Limited Company and I can see their details on Company House.

        Yes, I gave been told what many companies do to avoid paying tribunal costs, so have asked for a Penalty Enforcement first where the Government write to her and she gets 28 days to pay, or the Government charge her 50% of the tribunal award.

        If that isn’t successful we know we need to pay for the sheriff officers.

        Did you mean we had to pay the £100 to the sheriff officers and then pay again to ask for an attachment?

        Yes it would be wrong to put children at risk, but was hoping they could at least threaten her with removal of goods and ask her to call the parents to come and collect their kids before they start removing items.

        I will call the sheriff officers and ask if they would do that.

        Thank you.

        1. Scottish Adviser Post author

          Hi Diane

          Each type of Diligence you normally ask a Sheriff Officer to execute, will involve paying them a fee,so serving a Charge for Payment will involve a fee, as will executing an Attachment.

          I don’t think I mentioned any specific amounts.

          All I meant is the Sheriff Officers job is to carry out the Attachment, its not to tell the nursery owner how to run their business or to phone the parents or to decide if the kids are to go home.

          If they are carrying out an Attachment in a Nursey, they are not going to disrupt the running of the Nursery,is all I meant.

          The best thing to do is speak to a Sheriff Officer. They will explain their costs, and also what they can and cannot do.

          I wish you all the best. I understand how frustrating this can be, especially after all the effort your daughter went through to get the Tribunal decision.

  5. David

    Hi

    Could you tell me if a Summary Warrant is granted in the Sheriff Court should there be a court reffrence number with it, so that you can phone the court to verify that it is genuine.

    1. Scottish Adviser Post author

      Hi David

      Normally, Summary Warrants are sent to the Courts in volume and are granted without a hearing.

      If you want to check it is genuine, I would contact your Local Council.

      If they have issued one, it will be genuine. It is an administrative process and on application, the Court just awards them on mass. They don’t query the information the Local Authority supplies them with, it just assumes it is correct.
      There is no reason why a Local Authority would issue one without it being genuine, as if they apply for it, there is no question they can get it.

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