Repossession - Mortgage stress

Mortgage stress logoIf the lender has a court judgment that entitles it to possession of your property, it can have that order enforced by applying to the court for a Property (Seizure and Delivery) Order.

A Property (Seizure and Delivery) Order authorises the sheriff (or a bailiff) to take possession of your home and deliver possession to the lender. If you have not already left the property, you will be evicted.The sheriff/bailiff generally posts notice of the eviction date, 2-10 days prior to eviction. However this is a courtesy and the sheriff/bailiff has no obligation to do this. 

Once it has possession of the property, the lender can put the property up for sale.

The lender can also enforce the judgment by asking the court for Property (Seizure and Sale) Order. This allows the sheriff/bailiff to take possession of the property and sell it at auction for the lender.

What powers does the bailiff have to come on to my property?

When enforcing orders to take possession of your house, the sheriff/bailiff can enter your property to carry out their duties under the order, including:

  • evicting you from the property,
  • securing the property and changing the locks to prevent re-entry, and
  • using any force and assistance that is reasonably necessary in the circumstances to carry out the order. 

The bailiff can evict any person who is not lawfully entitled to be on the property. This power may only be exercised between 9 am and 5 pm. If you are evicted and go back to the property without having the permission of the lender, you may be in contempt of court.

What if I left my pets at my property?

Dog sitting on lawnGenerally, if you left your pets at the property, the lender will give you a few days to retrieve them. If you do not pick them up within this time, the lender will usually call the local council or an animal welfare group to arrange for their removal.

You should only go back to the property to pick up your pets after making an arrangement with the lender to do so. If you are evicted, you cannot go back to the property without the permission of the lender or you may be in contempt of court.

What if I have left other personal belongings at the property?

If the sheriff/bailiff has executed a Property (Seizure and Delivery) Order or Property (Seizure and Sale) Order, you should contact the sheriff/bailiff and the lender to find out what happened to any personal belongings that were left at the property.

1. The sheriff/bailiff took my personal belongings

When executing these orders, the sheriff/bailiff may remove your personal belongings from your property (and anyone else’s that are left there) and store it securely. 

If you are the owner of the property, it must be returned to you if you pay the costs of removing and storing the property. Otherwise the sheriff/bailiff can deal with the property in accordance with any directions made by the court. You, the lender, or the sheriff can apply to the court for directions about what should happen with personal belongings that were removed from the property. 

2. My personal belongings are still at the property

If they have not been removed by the sheriff/bailiff, you should contact the lender as soon as possible to negotiate a time to go back to collect your goods. Generally, the lender may take up to several weeks to remove any personal items you have left at the property. Usually the lender will give you the opportunity to remove your things, often for a morning or an afternoon. 

  • You must get the permission of the lender before going back on the property.
  • You will be liable for the removal costs. 
3. The lender has already put my personal property in storage

If you did not remove your things from the property and make an arrangement with the lender to collect them, the lender can put your possessions in storage. You will have to pay the removal and storage costs to have them returned. If you cannot pay, your goods can be sold to cover those costs.

The lender has to take certain steps before it can dispose of your property as 'abandoned goods'. You should be given formal notice that it intends to sell or dispose of your personal property. You should make sure the lender has your current address so that you receive these notices. 

How long do I have to respond to the notice?

If you do not respond to the notice within one month, the lender can apply to the Magistrates Court of WA for an order to sell or dispose of your belongings as abandoned goods. The lender may be able to claim reasonable amounts for:

  • the costs of storing the goods after the Magistrates Court gives permission for them to be disposed of or sold,
  • the costs of insuring the goods, and
  • expenses made in connection with the sale or disposal. 

To avoid these additional charges, you should take your belongings when you leave the property or as soon as possible after, or at the very latest within 30 days of receiving the notice by paying what is owed. 

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Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.