The bailiff has the right to take over things not belonging to the debtor - check when
The powers of bailiffs conducting enforcement proceedings, and in particular those relating to the seizure of objects, have been regulated in such a way that we often doubt the rationality of the legislator. Well, the bailiff has the right to take over things that do not belong to the debtor, but are in his control. In addition, the recovery of things recognized by the bailiff as the property of the debtor turns out to be a torment.
The bailiff has the right to seize things that do not belong to the debtor by renting an apartment belonging to the debtor
Taking into account the content of the regulations, tenants of apartments from private owners should exercise particular care. Citing the fact that the debtor's owner of the apartment is not registered or residing in it does not take away the bailiff's right to seize movable property in the debtor's apartment. This right results from Art. 845 of the Code of Civil Procedure (hereinafter: the Code of Civil Procedure), according to which the bailiff may seize the debtor's movable property that is in his possession or in the possession of the creditor himself, who ordered the execution against him.
If the debtor's movable property is in the possession of a third party, the bailiff may seize it only if the third party agrees or admits that the movable property is the property of the debtor.
However, in such situations, bailiffs interpret the provisions in such a way that since the debtor is the owner of the apartment, he obviously controls the movable property in that apartment. However, this is an incorrectly applied presumption. Since the debtor handed over the tenant's apartment, it should be considered that the tenant controls the movable property in the apartment, so the bailiff should be entitled to seize only those that the tenant admits to be the property of the debtor.
However, it all depends on whether the creditor indicated the rented apartment as the debtor's place of residence. The bailiff is bound by the content of the application submitted by the creditor. If such a circumstance occurred, the bailiff in the course of the so-called field activities may take the movable property located in this apartment. It should be emphasized that the bailiff does not examine the ownership of the property, but only states that they are in the debtor's apartment.
The tenant may request the bailiff to enter a note in the seizure protocol that the seized items are his property. However, it will not automatically release things from enforcement.
The bailiff has the right to seize the movable property of the debtor
As indicated above, the bailiff does not examine whether the given movable property owned by the debtor is his property. For the bailiff, as is clearly apparent from the provisions, the very fact that the property is in the possession of the debtor is of importance.
It follows that the bailiff has the right to seize things that are in the debtor's apartment and do not belong to him. Since the debtor owns the object itself is important, it is possible to seize even a borrowed car, laptop or bicycle and such action by the bailiff is legal. It is therefore also possible that the bailiff seizes vehicles in the garage owned by the debtor who is the lessor. The rental or lease agreements are then irrelevant to the bailiff's rights.
The bailiff is not a court, does not decide on the fairness or legitimacy of enforcement, cannot conduct evidence proceedings, and does not make any substantive assessments. When it occupies a movable item, it does not examine whether it is owned by the debtor or another person. The bailiff has the right to take over the property of the debtor, e.g. when the debtor drives a car belonging to his mother-in-law, friend or even to a leasing company. It results directly from the provisions on judicial enforcement - explains Monika Janus, the press spokesman of the Chamber of Bailiffs in Wrocław.
The bailiff may take up things not belonging to the debtor - anti-enforcement action
Third parties who find themselves in one of the above-described situations choose the wrong solution and decide to bring a complaint against the actions of a court bailiff, relying on their ownership of the seized item. Such action leads to the loss of the case.
The appropriate action for this type of situation is an anti-enforcement action, based on the regulation contained in Art. 841 of the Code of Civil Procedure, also known as an intervention.
A third party may, by way of an action, request the exemption of the seized item from execution if the execution directed against him violates the rights of a third party.
It should be emphasized that the rights of a third party are violated only if the third party is the owner of the property seized by the bailiff.
An intervention action is brought to a common court together with evidence indicating the owner of the property. In this case, people running a business have a little easier task, because usually they will have a proof of purchase in the form of a VAT invoice. In the case of people who do not run a business or run, but do not have a VAT invoice, the proof may be a receipt together with a bank account statement, if the payment was made using a payment card. In the absence of even such evidence, it remains to refer to the witnesses.
The time limit for bringing an action is one month from the date of learning about the seizure of goods. Failure to meet the deadline will result in the dismissal of the claim by the court, and the deadline cannot be reinstated, so the reason for exceeding it will not matter.
Another issue is summoning the creditor to release the seized item from enforcement. It is the creditor who acts here as the defendant. The summons should be made in writing by registered mail, which will constitute evidence of the summons and will be significant for the demand for reimbursement of the costs of the intervention proceedings. In the event that the creditor did not receive the summons, the steps in the proceedings would commence and the creditor would recognize the claim, pursuant to Art. 101 of the Code of Civil Procedure, he would be entitled to reimbursement of the costs of the proceedings, regardless of the outcome of the case.
The described action is unfortunately the only possible way of recovering things belonging to a non-debtor and seized by the bailiff.Therefore, it is worth emphasizing that the summoning of the creditor to release the seized object from enforcement must take place as soon as possible, so that the creditor can respond to the summons in such a way as not to miss the monthly deadline for bringing an anti-enforcement action. Otherwise, there is no other way for the third party to be able to recover by force the property belonging to it seized by the bailiff.
In conclusion, the bailiff has the right to take over the things that do not belong to the debtor, which, although it seems to be an act that violates the law, is still quite legal. The most common reaction of people whose property rights are violated by the bailiff is to file a complaint against the bailiff's actions, which is an inappropriate measure. Such a person may take advantage of an anti-enforcement action, otherwise known as intervention, remembering to summon the creditor to release the seized item from enforcement, while maintaining a one-month time limit for bringing an action.