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 it is possible to ask a judge to lift the attachment order.
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.