Area of Law: Small Claims Court
Answer # 570
Seizure and sale of debtor's landRegion: Ontario Answer # 570
If there is a court judgment that says you are owed money, and the debtor refuses to pay, you may be able to recover the debt by selling or putting a lien on the debtor’s land. If you have attempted garnishment or seizure and sale of personal property, such as a vehicle, but were unsuccessful, and the debtor owns land, it may be possible to have the land sold so that the proceeds of the sale pay off the debt to you.
In most cases, however, the amount of a Small Claims Court judgment is too small in comparison to the time and expense of forcing the sale of a debtor’s land. In fact, the enforcement office has the authority to refuse to force a sale of real property where the estimated cost of executing a Writ of Seizure and Sale of Land is greater than the debtor’s equity in the property.
In such cases, the creditor will have the option of putting a lien on the property. Putting a lien on the debtor’s land, by filing a Writ, is often a good way to get the debtor to pay because the lien may discourage other lenders from extending credit to the debtor. Also, when the debtor sells the land, the lien must be paid from the proceeds before the sale can be finalized. A judgment creditor may file a Writ in any jurisdiction where the debtor may own land. Furthermore, a Writ can be filed regardless of whether the debtor owns land at the time of filing. To find out whether the debtor owns land, for a fee you can do a name search at the land registry or land titles office located in the area where you think the debtor may own real property. If the creditor wishes to enforce the Writ in more than one jurisdiction, a separate Writ must be obtained and filed for each.
If, after four months from the date the Writ was filed, the debt has not been paid, the creditor can ask the enforcement office to seize and sell the debtor’s land. The enforcement office must wait an additional two months (that is six months from the date the Writ was filed) before initiating the sale.
Obtaining a Writ of Seizure and Sale of Land
To get the debtor’s land sold, you will need to obtain a Writ of Seizure and Sale of Land, which, for a fee, is issued (stamped and signed) by the clerk of the court where the judgment was made.
To obtain a Writ of Seizure and Sale of Land you must:
1. Complete an Affidavit for Enforcement Request. You will need to describe:
- the details of the court order you are enforcing,
- the amount still owing,
- results of a search showing land owned by the debtor, and
- the county or district where the debtor owns land.
2. Complete a Writ of Seizure and Sale of Land form. This should include information such as: if there are any mortgages on the land; and, if the debtor lives there with a spouse, the name of the spouse.
3. Once both the Affidavit and Writ have been filled out, file them in the court where you obtained the 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 by the court within six years after the court made the order you are trying to enforce. If the Writ is not issued within the six-year period, you will have to make a motion to the court to allow it to be issued after that time. In such cases, the Writ must be obtained within one year from the date the judge granted leave to issue it.
Forms may be obtained at the Small Claims Court office or online from the Ministry of the Attorney General, Rules of the Small Claims Court Forms.
If you are unsure about how to obtain a Writ of Seizure and Sale of Land or how to place a lien on the land, the staff at the court office may be able to provide you with additional information.
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