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TAS Powers of a Bailiff to Enter a Home Without Consent?

Discussion in 'Debt and Bankruptcy Law Forum' started by Cass, 7 November 2014.

  1. Cass

    Cass Member

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    My ex-husband owes a substantial amount of child support. The CSA ( Child Support Agency) have taken legal action and things have now progressed to the point where they have sent him a notice of eviction so they can sell his house to pay the debt. He says that there will be a physical confrontation if the bailiff tries to evict him, and that he intends involving our two teenage sons in this - they live with him half the time. I am taking family court action to try to protect the boys, but my question is about the eviction process. I thought bailiffs, like debt collectors, could only enter a home with consent? Is there likely to be a physical confrontation if he refuses to leave the house?
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Cass,

    A bailiff cannot forcibly enter your ex's house, for example by breaking locks, but can enter if a door is unlocked. However your ex is entitled to refuse entry and may use reasonable force to stop the bailiff entering, but only to the extent of refusing entry to an exterior door of a house. Once a bailiff is inside he may forcibly enter internal doors. A bailiff may forcibly enter other buildings on the property that are not physically connected to the dwelling house. If your ex does refuse to allow the bailiff to enter his house, he should be advised not to assault or obstruct the bailiff as this may constitute contempt of court, which is a serious offence.
     
  3. Sarah J

    Sarah J Well-Known Member

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    Hi Cass,

    Have a read of the bailiff powers from the Hobart Community Legal Centre:

    "
    The Powers of the Bailiff
    The bailiff cannot forcibly enter the debtor’s house by, for example breaking a lock, but can enter if all he or she has to do is open an unlocked door. The debtor can refuse entry and is entitled to use reasonable force to stop the bailiff getting in. This only extends to the outer door of a dwelling house; once inside he may break open inner doors. Furthermore it gives no protection against forcible entry of a bailiff into other buildings on the debtor’s property that are not physically connected to the dwelling house (for example, a barn or garage), or other buildings such as a shop used only as a place of business.

    The bailiff may also enter the house of a stranger to execute the warrant, but does so at his own risk. If the goods of the debtor are not there the bailiff is a trespasser and liable to an action. It seems the bailiff may also break in if the debtor’s goods were taken there to avoid a lawful execution.

    Lawful and Unlawful Execution
    It is important to remember that even if execution is made following an illegal entry, the validity of the execution is not affected. The debtor’s only remedy would lie in an action against the bailiff for trespass. Fortunately bailiffs rarely exceed their powers as they are reluctant to behave in a manner for which they would be personally liable.

    After the bailiff has been let in and has seized goods, he can forcibly re-enter the second time to take them away. He may also, if necessary, break open a door in order to carry away goods that have been seized. "

    If your ex wishes to prevent enforcement, he must either negotiate an arrangement with the judgment creditor, challenge the debt or order in court or apply for a stay (suspension) of enforcement action.
     
  4. Gus

    Gus Active Member

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    I did not realise that bailiffs could not enter if you do not give your consent and that you could use reasonable force to stop them entering. Do you know if this is also true for Western Australia?

     
  5. Sarah J

    Sarah J Well-Known Member

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  6. Gus

    Gus Active Member

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    Our family TV is a flat screen, does the bailiff have the power to remove this?
     
  7. Sarah J

    Sarah J Well-Known Member

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    It depends on the court order. The typical process is that they will usually enter your house and make a list of the available items and value them, then they will return for specific items. Your TV may be part of that valuation. You have the right to refuse them at the first entry however, you will need to apply to court for the order to be overturned or challenge the order or negotiate a payment agreement with the creditor as soon as possible after that. If not, you may be considered acting in contempt of court.
     
  8. Gus

    Gus Active Member

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    Yes, I see, ok. Thanks for your advice. Maybe I need to sell the big flatscreen and buy a cheaper TV then.
     
  9. Sarah J

    Sarah J Well-Known Member

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    Hi Gus,

    It may be possible to sell the television before the bailiff comes and inspects your property. It would not be advisable to sell the property after the bailiff comes and does the valuation. Having said this, no matter when you sell it, if the bailiff finds out, they may be able to go after you for obstruction of justice given that you have diverted assets away with the intention of evading enforcement of the order. Your best option is to either fight the debt or come to a payment plan with the creditor, hence, removing the need for a bailiff and the enforcement order.
     
  10. Gus

    Gus Active Member

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    Yes, I see. Thanks for your help on this Sarah.
     

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