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WA Seizing Tenant's Properties to Make up for Debt?

Discussion in 'Debt and Bankruptcy Law Forum' started by Johns84, 13 February 2016.

  1. Johns84

    Johns84 Member

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    Hi,

    Special thanks to anyone that can answer these questions.

    In order to seize a tenants property to make up for a debt, it must first go to the the magistrates court to be heard. My tenant has stopped paying rent for 6 weeks and counting and is deliberately ignoring my phone calls. I am almost about to fill out the Form 12 for my case to be heard in magistrates court.

    1. Is it likely the magistrate will allow me to hire a bailiff to seize the tenant's property (e.g. car and personal belongings)?

    2. What if the tenant moves out and takes all his belongings before the bailiff arrives? Will the bailiff be in pursuit of the tenant?

    3. What if the bailiff arrives on time, decides to seize belongings and the tenant denies that the items belongs to him and says that it belongs to friend's?

    4. The tenant I believe is probably bankrupt. Is it possible for a person bankrupt to own a car? In the event, we have to seize his car. He has 3 cars in the house but I'm not sure it's under his name.

    5. I know that it costs about $500 to hire a bailiff to remove a tenant from the property but does it cost extra to apply for a bailiff to seize property or to pursue a case of seizing property?
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Johns84,

    First things first. In order to undertake enforcement proceedings such as seizing property, real or personal, you need to get a judgement in your favour by the court. This means filing a claim in a court of relevant jurisdiction and then either obtaining default judgement ( if the tenant fails to respond) or going to trial. This takes a decent amount of time. Judgement in your favour is required in order to undertake enforcement proceedings. If the tenant is bankrupt you will have to simply prove your debt in his bankruptcy and wait to be offered a percentage of your debt by the trustee. Yes its possible for a bankrupt to own a car, but you can't touch it if he is bankrupt. Once you are bankrupt your creditors can't touch you, they must go through the trustee in bankruptcy.

    If you are talking about re-entering your own property that's a different story. Please clarify
     
  3. Hope this helps

    Hope this helps Well-Known Member

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    I assume you want the tenant out due to the fact he has not paid his rent for the past 6 weeks. It is also normal procedure that a tenant pays a bond equal to one months rent as Bond plus the equivalent sum of 2 weeks rent before they move.

    Please indicate what state you live in so I can state correct forms numbers. However, I will use QLD as an example.

    I presumed you have lodged complaints to the RTA ( Residential Tenancies Authority each time you have sent a tenant a Notice to Remedy Breach, allowing within 7 days for the tenant to fix and make up rental payments up to date each time you have not received the rent.

    All forms and facts regarding rights and disagreements, breaches, etc. can be found on Home | Residential Tenancies Authority.

    Residential Tribunal

    Look under Magistrates Court in your white papers or app.

    Alternative Dispyte Resolution Centre

    Dept. Of Jystice and Attorney General.

    If not

    I presume you have done the following regarding your tenant:

    If the tenant has breached the tenancy agreement and in this case paying rent, the lessor ( you) must send a ' Notice to Remedy Breach ( form 11) and lessor has 7 days to contact you in writing stating why or asking if some arrangement can be made , or fix breach by paying all rent up to date.

    Each time your tenant breaches the agreement in the same way more than twice in a one year period and you have given the tenant a Notice To Remedy Breach (form 11) each time, you can apply directly to the tribunal to end the tenancy.

    If the tenant does not fix up breach/ s within the time you have allowed (no less than 7 days), you give them a Notice to leave form 12, giving them less than 14 days notice to leave for unremedied General breaches of your agreement.

    Tenant must after given a Notice to leave ( form 12) for an unremedied breach, they must : Move out by the handover date specified on the form giving them minimum 7 days notice for unremedied rent in arrears and 14 days notice for Unremedied General Breaches of the agreement or apply to the RTA's Dispute Resolution Service for help to resolve the problem.

    If tenant doesn't move out by handover day, the lessor ( you) can apply directly to the Tribunal for a Termination Order and a Warrant of Possession. You must apply to the Tribunal within 14 days.

    You can not use force to make the tenant leave nor enter premises to recover possession of your place without a Warrant of Possession.

    When you apply to the Tribunal, you will be notified about hearing time and date. You have the right to attend this hearing to explain your situation and present any evidence. For info about the Tribunal contact the RTA in your state for a copy of Handling tenancy disputes in the Tribunal.

    The a tribunal decides the case in your favour it will make a Termination Order for you , issue a warrant of Possession. The warrant authorises a police officer or stated authorised person to enter the premises and make your tenants leave.

    You will be awarded as the tenant will incur reasonable costs for breaking the tenancy agreement. Including costs for re- letting the premises which may include:

    Compensation for list of rent
    The cost of advertising for new tenants
    Costs incurred by you such as the tenant having to pay a letting fee to an agent
    Court costs
    Rent not paid

    Whether or not the bond is returned due to damage or more if damages are done, etc. You can not go to the premises and take what you want.

    You must know your rights and correct notice period to check and expect premises every 3 months, whether they are there or not. However, if not phone or go to the RTA in your state. Go to their website. Know your facts, gain knowledge and print out forms including tribunal.

    RTA are good as resolving disputes and getting ppl out etc. only if RTA can not the go to the Tribunal.

    Good luck
     

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