Exceptional attachment

Exceptional attachment

• Exceptional attachment order
• Exceptional circumstances
• Sheriff officer’s power of entry
• Unlawful acts before attachment
• Valuation
• Goods exempt from an exceptional attachment order
• Redemption
• Goods of sentimental value
• Challenging an exceptional attachment

Exceptional attachment order

An ‘exceptional attachment’ is an order of the court allowing articles kept in a dwellinghouse to be attached. The order allows a sheriff officer to open shut and lock fast places and to attach, remove and auction the client’s non-essential assets that are in the dwellinghouse at the time of attachment.

An exceptional attachment order:1s47 DAA(S)A 2002

•authorises the attachment, removal and auction of the client’s non-essential assets which, at the time of the attachment, are kept in any dwellinghouse specified in the application; and
•specifies a period during which the order is to be executed; and
•empowers the sheriff officer to open shut and lockfast places to execute the order.

 

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Exceptional circumstances

Before a sheriff grants an exceptional attachment order to a creditor, they must be certain that there are exceptional circumstances for doing so.1s48 DAA(S)A 2002 They must consider:

•the nature of the debt (and, in particular, whether the debt incurred relates to any tax or duty or to any trade or business carried on by the client);
•whether the client resides in the dwellinghouse specified in the application;
•whether the client carries on a trade or business in that dwellinghouse;
•whether debt advice has been given to the client;
•whether a time to pay direction or order in relation to the debt has lapsed;
•any agreement between the client and creditor for the settlement of the debt;
•any declaration or representation made, or document lodged, by or on behalf of the client which relates to:
◦the existence of any non-essential assets owned by the client; and
◦where they exist, their value; or the client’s financial circumstances.

Before deciding whether to make an exceptional attachment order, the sheriff may make:

•an order for a visit to the client by a person specified in the order for the purposes of giving debt advice to the client; or
•such other order as the sheriff thinks fit.

The sheriff must also be satisfied that:2s47 DAA(S)A 2002

•the creditor has taken reasonable steps to negotiate (or seek to negotiate) a settlement of the debt; and
•the creditor has executed or reasonably attempted to execute a non-earnings arrestment and an earnings arrestment to secure payment of the debt; and
•there is a reasonable prospect that the sum recovered at auction would be at least equal to the total of a reasonable estimate of any chargeable expenses plus £100 (or other specified amount); and
•having had regard to the nature of the debt and whether the client resides in the dwellinghouse and carries out a business there and any other matters which the sheriff considers appropriate, it would be reasonable in the circumstances to grant the exceptional attachment order.

A creditor must normally try an earnings and a non-earnings arrestment before applying for an exceptional attachment order. However, in some circumstances this can waived.

 

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Sheriff officer’s power of entry

Unless the authorisation in an exceptional attachment order to open shut and lockfast places, a sheriff officer should not enter a dwellinghouse to execute the order unless there appears to besomeone present who:1s49(2) DAA(S)A 2002

•is aged 16 years or over;
•because of their age, knowledge of English, mental illness, mental or physical disability or otherwise, cannot understand the consequences of the procedure being carried out.

In addition, the sheriff officer must send a notice to the client at least four days before the intended date of entry, which explains what will happen and when.2s49(1) DAA(S)A 2002

The creditor/sheriff officer can apply to the sheriff to dispense with the requirement to serve notice on a client, this is done when the creditor/sheriff officer believes the client will dispose of non-essential goods so defeating the exceptional attachment.

 

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Unlawful acts before attachment

When a client has received notice of an exceptional attachment order, it is unlawful for them or a third party (who is aware that the order has been made) to:1s50 DAA(S)A 2002

•move any non-essential goods from the dwellinghouse, to sell, gift or give up ownership of any non-essential goods without the sheriff’s permission;
•wilfully destroy or damage any non-essential items that would normally be attached in pursuance of the order.

If non-essential goods are stolen before the exceptional attachment takes place but after the notice has been received, the client must inform sheriff officers straight away and provide details of any insurance claims that may be made.2s50(3) DAA(S)A 2002

 

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Valuation

Sheriff officers should value any goods at the price they are likely to fetch if sold on the open market.1s51 DAA(S)A 2002 If the sheriff officer considers it appropriate, they can arrange for an attached article to be valued by a professional valuer or other suitably skilled person.

If the goods are valued at a different value than the sheriff officer, the client is notified of the valuer’s price.2s54(3) DAA(S)A 2002 This is often happens when paintings or jewellery are attached, and the sheriff officer is unsure of the value.

 

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Goods exempt from an exceptional attachment order

Sheriff officers cannot take money from a client’s home (although they may take it from business premises).1s11 DAA(S)A 2002 The exception is if the money is ’antique money’, such as that kept by a coin collector, which may be worth more than the value shown on the money itself.

Sheriff officers cannot exceptionally attach:2Sch 2 DAA(S)A 2002

•basic items needed for family life, including clothes, work tools, essential furniture, housekeeping equipment, children’s toys, bedding, household linen, floor coverings, lights or light fittings home computers, radios, microwaves, TVs or telephones;
•rented or hire purchase/conditional sale goods which are still being paid off;
•if property belongs to other people (such as children, family members or a neighbour), proof must be shown. The owner can tell the sheriff officer that the item belongs to them and provide written evidence.

Schedule 2 to the Debt Arrangement and Attachment (Scotland) Act 2002 has a full list of all the goods which are exempt from being attached under an exceptional attachment order.

 

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Redemption

After goods have been removed, the client only has seven days to redeem any attached items.1s56 DAA(S)A 2002 The client must pay the amount the goods had been valued at to the sheriff officers. Then the goods are released from the exceptional attachment schedule. If all goods on the exceptional attachment schedule are redeemed, the auction does not take place. If there are still unredeemed goods, the auction is held as soon as possible after seven days have passed.

 

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Goods of sentimental value

There is protection for the client against goods of sentimental value being attached during the execution of an exceptional attachment.1s52 DAA(S) 2002

Unlike for exempt goods, there is not a list of sentimental goods in the legislation. It is generally the sheriff officer’s judgement, but a client can challenge any goods which have been exceptionally attached which they consider to have sentimental value as long as it is worth no more than £150 – eg, a wedding ring.

 

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Challenging an exceptional attachment

An attached article cannot be auctioned after their removal for seven days.1s55 DAA(S)A 2002 During this seven-day period, the client can challenge an exceptional attachment by applying to the court and asking that attached goods be released, this can be on the following grounds:

•the attachment of an item is not ’competent’. This means that the correct procedures have not been followed and the exceptional attachment order is not valid; or
•an auction of attached items would be ’unduly harsh’; or
•goods are of sentimental value and are worth less than £150; or
•the items were attached at a lot less, or more, than their true market value; or
•the value of the items is less than the likely costs of an auction.

Use Form 28 when challenging an exceptional attachment order.2Sch 1 App 1 AoS(DAA(S)) 2002

An ’appeal’ is possible in respect of any decision in relation to proceedings concerning an exceptional attachment order.3s57 DAA(S) 2002 This should be made to the sheriff clerk with the leave of the sheriff only on a point of law. The sheriff’s decision on appeal is final.

 

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