If the debtor has been ordered by the court to pay the creditor money but he or she has not paid, the creditor can ask the enforcement office to take specific personal possessions belonging to the debtor and sell them at public auction so that the money can be used to pay the judgment debt.
The costs of this procedure can be relatively high. The creditor risks paying these costs with no chance of recovery if the debtor does not have any goods worth seizing and selling, and other enforcement remedies fail. It is a good idea to confirm beforehand whether this procedure will be worthwhile.
What is a writ of seizure and sale of land?
A creditor can file a writ of seizure and sale of land against a debtor in any county or district where the debtor may own land (including a house). The writ would encumber any land presently owned or land which may be purchased in the future by the debtor in the county(ies) or district(s) where the writ is filed. If you wish to enforce the writ in more than one location, you must issue a separate writ for each location and file it there.
The writ of seizure and sale of land can be very effective in the long run since it will be difficult for the debtor to sell or mortgage the land until the debt is paid.
In addition, if another creditor has a writ filed in the same enforcement office against the same debtor and is actively enforcing it, you will share, on a pro-rata basis (divided on a proportionate basis depending on the amount of each debt), in any money paid into the enforcement office (sheriff) from any enforcement activity taken against the debtor.
Note, however, that the enforcement office has a general duty to act reasonably and in good faith towards all parties. The enforcement office can refuse to act if the estimated costs of executing the writ of seizure and sale are greater than the debtor’s equity in the property to be seized.
The writ can be filed whether or not the debtor owns land at the time of filing. However, if you prefer not to file until you are certain the debtor owns land, for a fee you can do a name search at the land registry or land titles office (visit the ServiceOntario website for a list land registry/titles offices) located in the area where you think the debtor may own property.
Does the creditor have to wait for the debtor to decide to sell the land?
No. Four months after filing the writ with the enforcement office you can direct the enforcement office (sheriff) to seize and sell the land, but the actual sale cannot proceed until the writ has been on file for six months. Contact the enforcement office to determine what will be required to commence with the seizure and sale of land.
Note: The enforcement office can only sell the portion of the land that the debtor actually owns. Mortgages, liens and encumbrances may reduce the value of the property that is available to be seized and sold by the enforcement office. Creditors should determine, before proceeding with this process that the debtor actually has equity (difference between what a property is worth and what the owner owes against that property) available to be sold.
The sale of land is a complicated and costly process, and commencing this process requires a large initial deposit for expenses associated with the sale.
Creditors should consider other less costly enforcement options before directing the enforcement office to proceed with seizing and selling the debtor’s equity in the land.
How long does the writ last?
The writ will expire six years from the date it is issued, unless you renew it for an additional six-year period. A writ may be renewed before it expires by filing a Request to Renew a Writ of Seizure and Sale [Form 20N] with the enforcement office. Each renewal is valid for six years from the previous expiry date. There is a fee to file and renew a writ.
How does a creditor begin the Writ of Seizure and Sale of Land process?
The procedure is:
You fill out an Affidavit for Enforcement Request [Form 20P].
This form describes:
the details of the court order you are enforcing;
the amount still owing; and
the county or district where the debtor owns land.
You fill out a Writ of Seizure and Sale of Land [Form 20D].
You file the affidavit and writ in the court where you obtained judgment. Court staff will issue the writ and return the original to you to file in the enforcement office. You must have the writ issued within six years after the court made the order you are trying to enforce or make a motion to have it issued it later. If you wish to file a writ in more than one county or district, you will require an additional affidavit and writ for each location. There is a fee for issuing the writ in the Small Claims Court and a fee for filing it in the enforcement office.
Note: See the “Tips” sheet at the end of this guide for more information on completing forms. Refer to the “Guide to Fee Schedules” for information on fees.
What help is available to a party involved in a seizure and sale of land?
Any party involved in a seizure and sale of land may choose to get legal advice. If you wish to consult an Ontario lawyer or paralegal, you may contact the Law Society Referral Service operated by the Law Society of Upper Canada. The Law Society Referral Service can provide you with the name of a lawyer or paralegal in your area, who will provide a free initial consultation of up to 30 minutes to help determine your rights and options. If you would like to be referred to a lawyer or paralegal, you may submit a request to the Law Society Referral Service by completing the online request form at http://www.lawsocietyreferralservice.ca. A crisis line is available Monday to Friday, 9:00 am to 5:00 pm. The crisis line is intended for people who are unable to use the online service, such as those in custody, in a shelter, or in a remote community without access to the internet. The phone number for the crisis line is 416-947-5255 (toll free 1-855-947-5255). Information about how to be referred to a lawyer or paralegal through the Law Society’s Referral Service is available at http://www.lsrs.info. You may also use the Law Society’s Lawyer and Paralegal Directory, which may be viewed at http://www.lawyerandparalegal.directory.
DISCLAIMER
We believe the information contained in this article to be accurate. It is presented with the understanding that we are not engaged in rendering legal, accounting, or investment advice. When professional assistance is required, utilize the services of a licensed real estate broker, lawyer, accountant, or other consultant as may be required.
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