The bailiff seized my property even though I am not the debtor

Execution by sale of movable property is not the first choice of the executor, however, sometimes the whole situation reaches this point. The bailiff and his assistants go through the apartment and seize valuable items, the sale of which could satisfy creditors’ claims. Sometimes, however, he includes in the seized property items that do not belong to the debtor. For example, a lawnmower that the debtor borrowed from a neighbour, a girlfriend’s personal belongings or a roommate’s computer. A separate chapter is devoted to cases of debtors who declare their permanent residence in an apartment in which they are merely tenants, and sometimes even fail to declare their permanent residence even though they already live elsewhere.

Mr Rudolf lived with his friend Honza, who had tried unsuccessfully several times to start a business. His last attempt ended in 2020, when he planned to open a restaurant and borrowed money on credit to equip it. Shortly after opening, however, the closure of shops and restaurants due to covid turned Honza’s plans upside down. He put all his money into the business, sold some property, but gradually there was no money to pay the debts and eventually the whole situation came to foreclosure. Mr Rudolf knew that his friend was not doing well, but he had no idea that everything had gone that far. That’s why he was surprised by the bailiff’s presence in the flat. Although he did not notice Rudolf’s possessions in his room, he was intrigued by a keyboard worth tens of thousands, a camera and an air purifier located in the common areas of the apartment. Although Honza argued that these items were not his property, the bailiff seized them anyway.

Foreclosure is a matter fraught with emotions, some of which may be linked to the unlawful seizure of other people’s property. However, this does not mean that the bailiff is acting illegally at the time. He or she may not include in the inventory of items to be sold something that is indisputable and obvious that it belongs to someone other than the debtor (the children’s toys or the girlfriend’s car, who proves ownership on the spot with a registration certificate). Therefore, if a third party proves that the item does not belong to the debtor but to her, the bailiff will not include the item in the inventory. Any document in the name of the bailiff – an invoice, a receipt or a bank account statement – will be a proof for the bailiff. On the other hand, bailiffs are not obliged to examine the question of ownership on the spot. If it is merely a claim by the debtor that the item is not his, he may seize the item and invite the alleged owner to prove ownership.

If the bailiff has breached some legal duty and damage has occurred which would not otherwise have occurred but for the breach of legal duty, and the bailiff could have prevented it, then the bailiff is also liable for that, whether or not the foreclosure is wrongful.

Can the seizure of your property be prevented?

To some extent, we can try to prevent such situations, or at least prepare for them when they occur. How to do it?

For example, if you are renting an apartment, you may want to contractually prohibit the tenant from registering their permanent residence with you. You can put such a thing in the contract, but the truth is that the tenant does not need your consent to declare their permanent residence. He just needs to bring the tenancy agreement to the office. However, make sure the tenant has checked out after moving out.

What proves more useful when renting is to include in the rental agreement a list of items that are left for the tenant to use. This has a twofold advantage for the landlord. When taking possession of the apartment at the end of the lease , such a list of items – ideally accompanied by the condition of the item or photo documentation – can also be useful. Such a document should be sufficient for the bailiff.

The second piece of advice may be trivial, but it is worth remembering: if your friends or acquaintances are under imminent threat of foreclosure, do not lend them valuable items. Or be prepared for the bureaucracy involved in getting them back.

And a piece of advice that pays off not only in the event of foreclosures – keep receipts, invoices, sales contracts and other proof of purchase. In the event of a claim, it’s usually worth keeping them for two years. There are also cases where the warranty is longer. Proof of purchase can also be useful, for example, when claiming compensation. However, if your name is not on the receipt, which is not usually the case with a normal receipt, the court may not accept it as evidence. In this case, it is worthwhile to take the additional advice to pay mainly by card or bank transfer, which will be traceable in online banking. Together with the receipt, you will already have almost bulletproof proof.

What to do if the item is seized?

If your computer or coffee machine ends up in a bailiff’s warehouse with a “seized” sticker, you must first of all act relatively quickly. You have 30 days to file a motion to remove the items from the inventory. After that, the bailiff must make a decision within 15 days. If they do not comply, you can then bring an action for foreclosure in court.

The executor shall decide on the application for striking off only on the basis of documentary evidence which must be attached to the application. This complicates the whole matter quite a bit. If the ownership of an item can only be proved by a witness statement, for example, this can be replaced to some extent by a written affidavit of a witness (for example, the original owner). There is a statutory time limit of an additional 30 days for an exclusion action. Interestingly, the filing of the action is not conditional on a prior application for striking out the matter with the executor. Therefore, if you miss this procedure, or do not wish to go through it for any reason, you still retain the right to file a lawsuit.

In a foreclosure action, the plaintiff is the person who claims that an item belonging to him or her, and not to the debtor, has been seized in the foreclosure. Somewhat surprisingly, the defendant is not the foreclosing party, but the beneficiary, i.e. the lender, who usually has no say in what items are seized. His interest in the matter is that if he agrees to remove the item from the inventory, then the bailiff must remove it. He therefore has some interest in the property.

Theaction for ejectment must be supported by appropriate evidence. This is ideally the aforementioned invoices or sales contracts, which contain an indication of the object and the purchaser. As a rule, a receipt alone is not sufficient. If you do not already have such a receipt, or if you received the item as a gift, for example, your evidentiary situation is much worse. As evidence, you can propose witness testimony, photographs of the item in question. However, it is up to the court to decide whether this will be sufficient. The court may dismiss the claim for failure to carry the burden of proof. The position of the actual owner of the thing is therefore quite a lot of uncertainty and disadvantage, which is quite alarming given the fact that he has no part in the situation. If the item in question has a really high value, whether real or more emotional, it is worth contacting an attorney to recover it, with whose help the chances of success are greatly increased. Remember that you are up against a legally educated person as a bailiff.

If a foreclosure action has been filed, the property may not be included in the auction until the action is finally decided.