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Understanding Writ of Seizure & Sale (WSS) - Lelong things in your house

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asked on Aug 30, 2011 at 03:46
by   Human Right
edited on Apr 11, 2016 at 05:01
 
Although info given below is based on UK/British Law, our Malaysian Law is also based on British Law. This info enlighten us about Writ of Seizure and Sale (WSS) being executed by a court bailiff. WSS in Malaysia simply means they come to your home and take your things to "lelong" for debt owing by you to your creditor (bank).

The point here which I am not very clear is that when court bailiffs come, how the bailiffs are going to know which items in your home actually belongs to you as I know they can only take things belong to you. So now with this scenario, the onus is on who to prove who is the ownership of each item in the house.

At one point, I am made to understand that the bailiffs need to prove the ownership which I think, is a very difficult task to do. It is not like a motorcycle, car, house, land whereby a search with the relevant authorities could prove the name of the current ownership but with various things in your home, many of which are difficult to prove although some items could be identified with purchase orders or sale receipts. By then, some cash receipts are without ownership names.

For examples, I am renting a house where many items are furnished like beds, TV, sofa sets, exercise machine, piano, portable aircon, computers, furniture and etc. Does this mean a court bailiff can come taking these items and "suka suka lelong" them. Furthermore, some things may be rented, some things can be belonged to the debtor's spouse & working children and even some are borrowed items from friends like type-writer, laptop, portable piano and even an exercise machine or sewing machine!

This could be the reason why WSS is rarely and seldom executed on rented house or owned house where the items inside in the house are difficult to sort out who are the actual owners of the items. Moreover, most debtors' house items are not worth much of monetary value. WSS is much worth to be executed on rich men's home.

Even if I have a house rented agreement which documented the furnished items provided in the house, will the court bailiff recognise it as legal. The law pertaining to WSS has to be clear on this. If not, WSS is difficult to be executed if the onus is on the court bailiff to prove the real ownership name of every item in your house. Moreover, it is not fair to ask the debtor to prove every item because most of us do not have proper documentation of many items, some of which might have been given as gifts to your household, not necessary to you but can be to your spouse or adult children or even your grandparents or parents staying with you.

The above is my reflection. If anyone can explain in more greater details as to the actual WSS Law in Malaysia, please do so here for the benefit of all forumers here. The Malaysia Law pertaining to the WSS is much asked about and much to explore, to understand its actual legal operating process and procedure.
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2 Answers
answered on Aug 30, 2011 at 04:10
by   Human Right
edited Apr 11, 2016 at 05:02
 
Below is taken from a website based in UK.

In debt: what can a bailiff take from my home?

If you have outstanding debts that you have been unable to repay despite repeated warnings, your lenders may take legal action against you through the County Court to obtain a Judgment on your debt. Once they have a Judgment, they may be entitled to instruct a bailiff to go to your home and seize goods up to the value of the outstanding debt.

You will receive notification in writing if a bailiff is due to call at your house. Use the time this gives you to your advantage, and contact an expert debt adviser at your earliest opportunity to discuss your options.

What can bailiffs take?

Bailiffs can take any household goods up to the value of the debt you owe, except for goods that are necessary for a basic standard of living. So, they cannot take:

• Essential furniture and appliances such as your oven, fridge or bed
• Clothing
• Children`s toys
• Anything that doesn't belong to you (rented or other people`s property)


However, in some circumstances they can take items such as TVs, computers/laptops and stereo systems, as long as they belong to you. They can also take items that you jointly own with someone else.

They should not take anything that is essential for your work - so, for example, if you work from home, they shouldn't take your work computer.

Do I have to let the bailiffs in?

You are under no obligation to let County Court bailiffs in, and on their first visit they are only legally allowed to enter your home if you let them in, or if they enter through an unlocked window or door.

After they have gained entry however, they have a legal entitlement to force future entry and take any goods they have previously levied.

What can I do if I have been informed a bailiff will visit me?

It is important that you act quickly and talk with an expert debt adviser about your options. A debt adviser can offer guidance on the best course of action for dealing with the bailiff and, if appropriate, can recommend a longer-term solution for dealing with any other debts.

The "Can" and "Cants" of Bailiffs.

If you owe money, one of the ways your creditors might try to get their money back is by using bailiffs. The role of the bailiffs is to take your goods away and sell them to raise money to pay your creditors.

The rules about bailiffs are very complicated and what the bailiffs can do legally depends on what your debt is for. Bailiffs are commonly used if you have council tax arrears or if you have a court judgment against you. They can also be used for unpaid fines, child support arrears, rent arrears, income tax arrears and parking penalties (fines).

The bailiffs almost always need a court order to take your goods away. Check with an advice agency whether creditors can threaten you with the bailiffs without taking proper legal action.

If you've received notice that the bailiffs are going to come and take your goods away, you should get advice urgently. Do not ignore the notice. The bailiffs charge fees to come to your property and your debt will just get bigger if you ignore them.

Do I have to let the bailiffs in?
In many cases, you don't have to let the bailiffs in and they can't force their way into your property. However, they are allowed into your property without your permission if they can enter without breaking in. This is called 'gaining peaceful entry' and includes getting in through an unlocked door or open window.

Sometimes, bailiffs are allowed to break in to your property. For example, if you've got unpaid criminal fines, bailiffs working for the magistrates' court can, in some circumstances, use reasonable force to get into your home to seize goods. Also, in some circumstances, bailiffs can, with the courts permission, force their way into commercial property if there is no living accommodation attached. However, it is unlikely that a bailiff would be allowed to break into your property in other circumstances. If this happens, you should get urgent legal advice.

Will they take everything away?
There are rules about what the bailiffs can take and these rules depend to some extent on what the debt was for. For example, for most debts, the bailiff.
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answered on Oct 30, 2016 at 06:09
by   Mr Lawrence Chong
edited Oct 31, 2016 at 10:34
 
THE WRIT OF SEIZURE AND SALE (WSS) HOWEVER CANNOT TAKE:
  
* Work or study tools, instruments or books up to the value of RM200.00   
* Clothing, bedroom or kitchen furniture and non-movable items like ceiling fans, water heater, etc.   
* Property that is rented, mortgaged, on hire purchase or belongs to someone other than the judgment debtor.   

If the WSS does seize your goods in your house, the Bailiff cannot sell your goods 7 days after the goods were seized. Your goods must usually be sold in a public auction.  

Time and date of the execution of WSS is fixed. Must be executed between 9:00 am to 4:00 pm unless the Court otherwise orders.    

WHAT IF THE GOODS TO BE SEIZED BELONG TO SOMEONE ELSE?   

The Bailiff can only take property that belongs to the person against whom the court judgment was made (the “judgment debtor”). If the Bailiff tries to seize property that you don’t own, you should say that the goods are not your property. If possible show proof of ownership. The owner of the property must complete an Affidavit.   

An Affidavit is a legal form in which a person swears certain facts on oath before a Justice of the Peace or a solicitor. In the Affidavit, the person must swear on oath that he or she is the owner of the property. Evidence of ownership, for example, receipts should be attached whenever possible. The owner of the property should lodge the Affidavit at the Court as soon as possible after the WSS Court Order was handed to the debtor. The owner should also send a copy of the affidavit to the Bailiff Office (the location of the Bailiff Office is written at the top of the WSS Court Order).
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