Removal for sale fee, when can it be charged ?

[E Munch]

The following points come to mind having just read the whole thread in full. They are not put here for discussion.

 

• Threads like this become so long, tortuous and full of personal abuse they are very unlikely to be read and be helpful to any of the people you want to help.
  
• To resolve the issues discussed you should only look at the wording of the legislation. There is no case law yet and wording on council websites etc is not necessarily correct.
  
  • Paragraph 13 of Schedule 12 describes the way control may be taken of goods.
    
  • Regulation 5 of the Taking Control of Goods (Fees) regulations 2014 describes when the different stage fees can be charged.
    

  [*]Goods can be removed instantly (Paragraph 13 (1)© of Schedule 12 but whether a charge can be made for their removal is a separate issue to be decided by looking at TCoG (Fees) Reg 5 (1)©.

  [*]There was talk in an early post about where EAs must visit to incur stage fees and people used premises, relevant premises and property almost interchangeably. This is wrong. The fee regulations talk only of premises, not relevant premises. The TCoG (Fees) Reg 2(1) helpfully defines premises by referring to the definition in paragraph 3 of Schedule 12 and it says "premises" means any place and in particular includes (a) a vehicle, vessel, aircraft or hovercraft (b) a tent or moveable structure. For the discussion here it is therefore any place including a place where the goods were secured to take control of them.

  [*]I'm not sure many removals are taking place but for any case where you feel the charges for storage are too high the correct means of redress is contained in TCoG (Fees) Regulation 16 - apply to the court to decide the point. Take a case to court and publish the decision. It will not be a precedent in legal terms but the LGO will usually take notice and an acceptable amount will emerge.

  [*]Equita provide figures to one large city council for whom they work and they do not show the Sale or Disposal Stage fee ever being charged by them on any case in 17 months since the new regulations came into force.

[Peterbard]

I dont think we need your permission to discuss whatever we like, you put your post on here and it is fair game, having said that the points you raise have already been addressed, so there's really nothing to discuss.

With the possible exception of the use of the term premises. You are quite correct in that the word premises is used in the regulations, however the attendance to take control of goods come under section 14 of schedule 12 and this refers to relavant premises.

[Bailiff Advice]

 

Equita provide figures to one large city council for whom they work and they do not show the Sale or Disposal Stage fee ever being charged by them on any case in 17 months since the new regulations came into force.

 

I am sure that you are telling the truth but I would doubt very much that Equita are !!!

 

I have just opened a file on my computer for this enforcement company in relation to road traffic debts and this CONFIRMS that Equita have applied the sale stage fee of £110 on seven cases......out of eleven cases.

 

PS: In one of the cases they even charged £720 storage !!

[E Munch]

You might think that BA, I really couldn't comment!

I don't suppose you are saying that they charged 7 Sale or Disposal Stage fees on a group of 11 cases handled together, are you?

Assuming the answer to the above is no, how did the 11 cases get selected?

How many of the cases with fees were removed and have any of the cases on which the charge was made had more than one visit?

[E Munch]

Oh I forgot to mention one other point in my original post. Several posts above imply or state that the enforcement agent acquires title to the controlled goods. This is not so. Ownership or title to the goods remains with the debtor until they are sold and then it passes directly to the purchaser, usually the successful bidder in an auction. The binding of goods when the NoE is sent affects the debtor's rights to dispose of the goods but does not alter their ownership. When control is taken of goods by one of the methods described in paragraph 13 of Schedule 12 the enforcement agent acquires the ability to sell the goods but there is still no change in ownership.

If you look at paragraph 51(1) of Schedule 12 it says that the purchaser of controlled goods acquires good title (with two possible exceptions) and 52(2) indicates that the purchaser does not acquire good title if the goods were not the debtor's at the time of the sale, i.e. if they were erroneously sold goods which were not the debtor's. This shows the path directly from the debtor to the purchaser with no intervening stage where the enforcement agent has title.

[Peterbard]

Oh I forgot to mention one other point in my original post. Several posts above imply or state that the enforcement agent acquires title to the controlled goods. This is not so. Ownership or title to the goods remains with the debtor until they are sold and then it passes directly to the purchaser, usually the successful bidder in an auction. The binding of goods when the NoE is sent affects the debtor's rights to dispose of the goods but does not alter their ownership. When control is taken of goods by one of the methods described in paragraph 13 of Schedule 12 the enforcement agent acquires the ability to sell the goods but there is still no change in ownership.

If you look at paragraph 51(1) of Schedule 12 it says that the purchaser of controlled goods acquires good title (with two possible exceptions) and 52(2) indicates that the purchaser does not acquire good title if the goods were not the debtor's at the time of the sale, i.e. if they were erroneously sold goods which were not the debtor's. This shows the path directly from the debtor to the purchaser with no intervening stage where the enforcement agent has title.

 

It ok you can mention me i said this on a number of occasions. I see your point but as you asy this aplies to goods sold, not to goods which have been taken under control.

 

Take the case where bound goods are sold.

 

5(1)An assignment or transfer of any interest of the debtor's in goods while the property in them is bound for the purposes of an enforcement power—

(a)is subject to that power, and

(b)does not affect the operation of this Schedule in relation to the goods, except as provided by paragraph 61 (application to assignee or transferee).

(2)Sub-paragraph (1) does not prejudice the title to any of the debtor's goods that a person acquires—

(a)in good faith,

(b)for valuable consideration, and

©without notice.

 

So we see that the transfer of title can be made, and does happen under the operation of schedule 12.

[Peterbard]

sorry forgot to address section 52 etc, to me this seems to be referring to the taking control of goods when they were not the debtors, in other words they were not seized in accordance with section 10

It seems to say that goods can still be challenged when they are sold.

[Peterbard]

sorry forgot to address section 52 etc, to me this seems to be referring to the taking control of goods when they were not the debtors, in other words they were not seized in accordance with section 10

It seems to say that goods can still be challenged when they are sold.

 

Sorry just thinking about this, there is also the fact that debtors can be prosecuted for theft when controlled goods are taken, this would indicate that the tile was not theirs.

[E Munch]

Sorry Dodgeball I didn't note who mentioned what. I guess I'm not a people person, just trying to help leave the facts correctly stated.

 

• 5 of Schedule 12 is just about stopping the debtor passing title away from themselves to prevent their goods having control being taken of them. It has nothing to do with title passing to the EA.
  
• I don't disagree what 52 is about but it shows that unless the debtor has title immediately before the hammer goes down at the auction title will not pass to the winning bidder. If title went to the EA when they took control the debtor would not have title when the goods were auctioned and the winning bidder could not acquire title. By the way beware when looking at 10 and 52 of Schedule 12 as they are dealing with slightly different matters. Paragraph 10 is dealing with goods of the debtor which are defined as goods in which the debtor has a beneficial interest whereas paragraph 52 is specifically about passing title. Title is legal ownership I believe and beneficial interest is not the same thing even though it is possible for the same person to have both title and beneficial interest in one object.
  
• I don't know much about theft but I see the dictionary definition is A criminal act in which property belonging to another is taken without that person's consent. I have seen mention of people being accused of theft but that sort of sloppy talk is often used in newspapers etc. Has anyone actually been convicted of theft of their goods after control had been taken of them? If so they should sue their lawyer as it seems the easiest charge to defeat on the basis that the goods are not belonging to another person until sold.
  

[ploddertom]

I think the observation about theft is mostly related to motor vehicles that have been clamped & the clamp removed, the vehicle then being moved elsewhere. The EA then reports the vehicle stolen to the Police - who not having a clue take the EAs word as gospel. It would appear that there may well be offences committed but I don't think theft should be one of them.

[Peterbard]

Good morning EM

 

In section 5 I was drawing attention to the point that the binding of the goods does not limit the operation of schedule 12, this suggest that the transfer of title is possible in order for a function of the act to be taken. I suggest that this may be is the case in the taking control of goods.

 

TBH I have always assumed that this was how the EA was able to exercise the powers under the act, perhaps as they say you should never assume, I am aware of other acts which transfer(or permit the transfer) of title in order to perform some kind of function.

I was also under the impresion tht the title passed back to the debtor at the point of sale, again tis is a common procedure in much civil legislation.

 

Beneficial interest is a term I have come across mostly in terms of property and denotes an inters which assigned to a third party, for example as a result of a charge or assignment under the LOPA . |So in the case of goods it would probably be third party property which the debtor had a financial interest in.

 

Should be stated for the casual reader that it is has nothing to do with the subject of the thread, which is whn sale fees can be applied, because the goods must be under control no matter what the mechanism, it is however interesting.

 

As regards theft as you say the property would have to belong to the party deprived of it, this is what led me to believe the title was in the hands of the EA.

[Peterbard]

There is a handy chart here which describes the correct series of events regarding taking control of goods and removal for sale :

 

http://dukescouncil.co.uk/wp-content/uploads/2014/10/How-to-Take-Control-of-Goods-%E2%80%93-Bailiff-Studies-Bulletin-by-John-Kruse.pdf

[mikeymack2002]

So how does s5 (1) bode with this argument?

[Peterbard]

So how does s5 (1) bode with this argument?

 

Sorry not sure what you mean ?

[mikeymack2002]

Post #86 you mentioned the Theft Act see 5.1

[Peterbard]

Sorry mm but I cant see where I mentioned the theft act ?

[Coughdrop]

Sorry mm but I cant see where I mentioned the theft act ?

 

Nor can I. You mention theft in the last two lines, but not the Theft Act.

[Peterbard]

Although it is relevant in relation to what E Munch said earlier.

 

"I don't know much about theft but I see the dictionary definition is A criminal act in which property belonging to another is taken without that person's consent. I have seen mention of people being accused of theft but that sort of sloppy talk is often used in newspapers etc. Has anyone actually been convicted of theft of their goods after control had been taken of them? If so they should sue their lawyer as it seems the easiest charge to defeat on the basis that the goods are not belonging to another person until sold."

 

in that ir defines "property belonging to another".

 

Belonging to another”.

(1)Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

My emphasis.

 

It does seem from this that the EA would have the right to claim theft as he was undoubtedly in control of the goods. If this definition can be applied to the TCE in respect of taking control I would have to research further.

[E Munch]

Oh yes Dodgeball. I said I didn't know much about theft!

I see that is Theft Act 1968 paragraph 5(1)

5“Belonging to another”.

(1)Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

It certainly looks like an enforcement agent having taken control would fit the wording. Thanks.

So there is that and the offence under Schedule 12 paragraph 68(2) and possibly 68(1) that a debtor could be had for if they tried to spirit their own goods away from an enforcement agent after control had been taken of them.

[Peterbard]

Oh yes Dodgeball. I said I didn't know much about theft!

I see that is Theft Act 1968 paragraph 5(1)

5“Belonging to another”.

(1)Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

It certainly looks like an enforcement agent having taken control would fit the wording. Thanks.

So there is that and the offence under Schedule 12 paragraph 68(2) and possibly 68(1) that a debtor could be had for if they tried to spirit their own goods away from an enforcement agent after control had been taken of them.

 

Yes it is interesting, I noticed the TCE says that this would be a summery offence, i wonder if them the theft act could be invoked if the action was an indictable or each way procedure as in more serious cases.

[mikeymack2002]

DB/CD

 

 

When you are charged with an offence it is normally under an ACT, basics dear boys basics i.e. s1 of the Theft Act 1968 or other and so on.... Or if you are charged with fraud it is under the Fraud Act sxx and so on ok? Sorry for that if you want it clearer I can do that too!

 

 

Also when discussing an Act you can shorten it to the 1968 Act and so on, if you make it known which Act is being discussed.... Check out the quotes from legal documents from the Supreme Court.... They do it all the time....

[Peterbard]

Thanks MM. I am sure will we both want to make a note of that

[mikeymack2002]

Digs at people lower the tone of posts so I think there is no need for simple correction.

[Peterbard]

Digs at people lower the tone of posts so I think there is no need for simple correction.

 

 

Quite right, so lets stick to the topic of the thread.

[Coughdrop]

DB/CD

 

 

When you are charged with an offence it is normally under an ACT, basics dear boys basics

 

 

MM

:wink::wink::wink:

Would you like some cheese to go with your whine? lol

 

von Goethe (apologies if you have never heard of him) famously said, "Look closely at those who patronise you. Half are unfeeling, half untaught."

 

You appear to be both.

 

If you want to talk legislation, I'll give you another quotation from a world renowned law scholar with whose work I'm sure you'll be familiar, Mohamed ElBaradei. He said, "If you treat people with respect, they will go out of their way to accommodate you." Clearly this is common sense.

 

He went on then to say, "If you treat them in a patronising way, they will go out of their way to make your life difficult."

 

Hmmm........ I guess he didn't win the Nobel Peace Prize for nothing.

 

Have a nice day!

:wink::wink::wink:

 

ps I still can't see where DB mentioned the Theft Act in that post, despite your futile efforts to suggest otherwise.