Common law v Taking Control of Goods Regulations 2013

Enforcement Officers (formally known as Certificated Bailiffs) can take control of a defendant’s goods under a High Court writ of control (to recover money owned under a judgment debt) or under Commercial Rent Arrears Recovery (‘CRAR’) to recover unpaid commercial rent.

Before instructing an Enforcement Officer, you should be fairly confident that the defendant or tenant has sufficient goods to cover the judgment debt, the costs of enforcement and (if anticipated) the costs of removal, storage and sale.

It is worth remembering that we will generally only remove goods if we are unable to agree terms with the debtor under a Controlled Goods Agreement (formally a ‘Walking Possession Agreement’). Under a Controlled Goods Agreement, the debtor will be allowed to retain the use of the goods but will not be allowed to sell or move them until they have paid the debt owing under the agreement. Controlled Goods Agreement are a useful way of getting the judgment debt paid without incurring costs of removal and sale that can affect the amount available to credit against the judgment amount. 

Exempt Goods: Are there categories of goods that cannot be taking control of (or seized)?

Yes. There are two main categories of goods that an Enforcement Agent cannot seize; ‘tools of the trade’ and basic domestic goods.

‘Tools of the trade’ are items that are necessary for use personally by the debtor in the debtor’s employment, business, trade, profession, study or education. Goods under this exemption are protected insofar as they do not exceed a value of £1,350; where they exceed this value they are available for seizure.

Basic domestic goods that are exempt from seizure include ‘white goods’, i.e. a cookers; microwaves; refrigerators and washing machines. Items of bedding and clothing and items necessary for the care of persons under 18, older persons and disabled persons.

There are other less common exemptions and these are contained within the Taking Control of Goods Regulations (2013).

What are Chattels?

‘Chattels’ is, for the purposes of enforcement against goods, interchangeable with the term ‘assets’.

Can Enforcement Agents (or Bailiffs) remove ‘fixed’ goods?

The Taking Control of Goods Regulations 2013 has replaced much of the common law regarding what is and what is not available for seizure by Enforcement Agents (bailiffs). The Regulations offer no comment on the position as regards goods that are fixed to a property (‘fixtures and fittings’) and that are distrained upon by a bailiff. The common law position as regards distraint by a bailiff recovering commercial rent was that such items could not be seized. Part Three of the Tribunals, Courts and Enforcement Act 2007 (which is now in force by virtue of the Taking Control of Goods Regulations 2013) replaces the common law rules. This would suggest that there is nothing to prevent the goods being seized. However, the Enforcement Agent acting under the powers conferred by the Tribunals Courts and Enforcement Act will need to ensure that the removal of any fixed goods does not cause damage to the premises in which they are contained. 

Can Enforcement Agents (or Bailiffs) remove goods that are ‘in use’?

As above, the Tribunals, Courts and Enforcement Act 2007 replaces the old common law rules that prevent bailiffs acting under a distress for rent warrant from removing goods in use by the tenant.

The Taking Control of Goods Regulations 2013 does contain a similar, but more defined, provision. The Regulations prevent seizure of an item which is in use by any person if such action is likely to result in a breach of the peace. “In use” means that the item is in the hands of, or being operated by, the person/defendant. Goods ‘in use’ are therefore liable to seizure provided that seizure is not likely to result in a breach of the peace.

Can Enforcement Officers remove a car or vehicle?

Cars and other motor vehicles are generally liable to seizure. However, a vehicle will not be liable for seizure if:

  • it displays a valid disabled badge and is used for the carriage of a disabled person;
  • it displays a valid British Medical Association badge;
  • if it is used as a police, fire or ambulance service vehicle

The position regarding motorhomes and caravans is less clear. The Regulations provide that such vehicles are not liable to seizure if they are considered premises and are occupied by the debtor or another person as the debtor’s or that person’s only or principal home.

Can Enforcement Agents seize animals?

Livestock (which includes cattle, sheep, pigs, horses and poultry) are liable for seizure provided that they are not seized on a public highway or from a vehicle on a public highway in a way that might endanger public health. This means that livestock on a farm will be liable for seizure.

However, if removal of livestock is to proceed, the Enforcement Agent will need to ensure compliance with public health regulations during the process of transport and sale. This can make removal and sale a costly process.

The Taking Control of Goods Regulations 2013 change the common law position as regards domestic pets and these are no longer liable for seizure.