Q I have been following recent media reports about farm evictions. What is the process for a court judgment against you if you get into financial difficulty? Can you potentially be physically removed from your property? What is the role of the county sheriff and the Garda Síochána? What are the laws on the methods finance companies and their personnel employ in enforcing an eviction?
A Put simply, if you owe money to someone else (a bank or private individual), you are a 'debtor' and the person to whom you owe money is a 'creditor'.
If you fail to pay a debt in line with the agreement for the debt, your creditor can go to court to get a judgment that you owe the debt.
If a creditor gets a judgment against you, there are various mechanisms to get the money back from you (or potentially assets in lieu of payment to satisfy the value of the debt). This is known as enforcing/executing a judgment.
There are several different ways of enforcing a judgment. The creditor chooses the way in which they want to enforce the judgment and can use several different ways at the same time.
Once a creditor gets a judgment order, it can return to court to get an enforcement order. Creditors have 12 years from the date of the judgment to look for enforcement orders. Enforcement orders are generally valid for a year but they may be renewed.
The courts can grant a 'stay of execution'. This means that the enforcement of the debt is halted for a period. A stay of execution is typically granted if you can show the court that your inability to pay is not your fault/beyond your control.
Enforcement The following are the most commonly used ways of enforcing judgments:
Execution against goods, instalment orders, followed (if necessary) by committal orders, attachment of earnings and judgment mortgage. Ways like appointment of a receiver and bankruptcy proceedings are less common.
The sheriff and Garda SÍochána
Sheriffs enforce judgments in counties Cork and Dublin while county registrars enforce them in all other places.
Sheriffs are self-employed people who are paid for their enforcement work on a commission basis.
The sheriff or county registrar does not have to give notice to seize your property in order to execute a judgment. Their duty is to the creditor, so they cannot take your circumstances into account. The sheriff/county registrar has the power to go on to your property in order to seize your goods.
They must make reasonable efforts to do this peaceably and without violence but they may make a forced entry. Goods with a low resale value are unlikely to be seized.
If the sheriff/county registrar does seize your goods, they must, within 24 hours, give you an itemised and signed list of the goods seized. They may then sell the goods by public auction and the proceeds are paid to the creditor in satisfaction of your debt.
Instalment orders is a method of execution - often used by credit unions and smaller credit institutions.
If you fail to pay the instalment order, the creditor can look for a committal order which would commit you to prison.
The Civil Debt (Procedures) Act 2015 provides for abolition of the imprisonment of debtors for non-payment of civil debts. This is due to come into effect shortly.
The current law provides that you may be imprisoned for failure to pay debts only if you can afford to pay but refuse to do so.
The role of the gardai is to deal with offences committed by persons in the State. This also extends to the protection of people who are carrying out their duties in a law-abiding way.
The new Civil Debt Act provides for the attachment of earnings or deductions from social welfare payments, as appropriate, for the purpose of the enforcement of debts.
This legislation will apply to debts that are more than €500 and less than €4,000 in value, and for which a court judgment has been obtained. It is due to come into effect shortly.
A creditor may register a charge against property owned by you. The effect is the same as taking out a conventional mortgage. You have to pay off the judgment mortgage when the property is sold.
When you take out a mortgage to buy a property, you offer the property as security for the mortgage debt. If you are unable to pay the mortgage, you may be faced with repossession. Your lender must take certain steps to deal with any problems you have in paying your mortgage.
Repossessing your home should be the lender's last resort.
Even if you have no mortgage on your home, it could be in danger of repossession if you have other debts. If you build up other debts and are unable to repay them then the people to whom you owe money may register that debt as a judgment mortgage against your house, flat or apartment and seek to recover their money in that way.
You can consent to have your home repossessed. You may agree terms with your lender for the sale of the house, if you are unable to pay your mortgage. The lending institution must get a court order to repossess or sell your house unless you consent in writing seven days before the repossession or sale. If the issue must go to court, you are generally liable for the costs of the court action.
If you do not consent to the repossession, the usual procedure is that the lending institution/creditor applies to the court for one or more orders - a possession order and/or a well-charging order. These orders may be granted in the same proceedings. Generally, it is the practice of the courts to allow you some time to make arrangements to repay the money owed before making any final orders. If an order for possession or a well-charging order is made against you and you do not hand over possession or comply with other terms of the orders, the orders may be enforced by the sheriff or by the county registrar.
The county sheriff or the county registrar may seek the assistance of the gardai to enforce the order to repossess the property.
If you find yourself in these difficult circumstances or if you feel that you are not in a position to make payments on a debt you should seek financial advice from MABS or one of the other advisory bodies. It is always better to seek advice at an early stage to ensure the best outcome.
Theresa Murphy is a barrister based in Ardrahan, Co Galway