Explanatory note

These Regulations make provision relating to the procedure for taking control of goods under Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (c. 15) (“the Act”). The Act provides a new statutory code in relation to taking control of goods in order to sell them to enforce the payment of debts (formerly known as “distress”). By section 62 of the Act, the Schedule 12 procedure is available where an enactment, writ or warrant confers the power to use the procedure.

The Regulations also make provision in relation to the procedure for commercial rent arrears recovery under section 72 of the Act.

Part 1 of the Regulations provides for general interpretation (regulation 2), application of the Regulations (regulation 3) and for those categories of goods which are exempt from enforcement under Schedule 12 (regulations 4 and 5). These broadly reflect the necessities of life. Since goods can include items such as a houseboat, which may be a person's home, regulation 5 specifically excludes such items.

Part 2 of the Regulations relates to the procedure for taking control of goods. Regulations 6, 7 and 8 make provision as to the notice that must be given to a debtor prior to the taking of control. Regulations 9 to 15 deal with the actual taking of control, both regarding goods on premises and goods on a highway. Particular protection is given to children and vulnerable persons (see regulation 10) so that an enforcement agent may not take control of goods where either the debtor is a child, or a child or vulnerable person (or more than one such person) is or are alone on the premises. Regulations 9 to 13 deal with the time limit for taking control, the circumstances in which control should not be taken, and the days and hours when control of goods may be taken. Regulations 14 and 15 deal with controlled goods agreements, under which the debtor is permitted to retain custody of the goods but must not remove, dispose of or permit another person to deal with them pending payment of the debt. Regulations 16 to 19 deal with securing the goods of the debtor, for example by fitting an immobilisation device.

Regulations 20 to 27 relate to entry to premises as permitted by paragraphs 14 to 16 of Schedule 12 to the Act, including the method of entry, when entry or re-entry may occur, restrictions on entry, re-entry and remaining on premises, and the necessary notice of entry where required by paragraph 19A of Schedule 12 (a specific provision relating to the use of reasonable force to re-enter premises after a controlled goods agreement has been breached – regulations 25 to 27).

Regulations 28 and 29 deal with the circumstances in which a court may issue a warrant permitting the use of reasonable force by the enforcement agent to enter premises or to take control of goods on the highway.

Regulations 30 to 35 concern the procedure following entry and taking control of goods. These regulations provide for notice requirements, the provision of an inventory to the debtor and any co-owner of the goods, and care and valuation of the controlled goods.

Part 3 (regulations 36 to 43) provides for the sale of the controlled goods (save for those which are securities). Provision is made for notice to the debtor and any co-owner of the sale (regulations 37 to 40), and for the conduct of the sale (regulations 41 to 43).

Part 4 (regulations 44 to 46) deals with goods which are securities of the debtor. Regulations 45 and 46 make provision about the holding, protection, and disposal of such securities by the enforcement agent, and also the notice procedure where the creditor exercises the right to take proceedings under paragraph 49 of Schedule 12 to the Act (by which a creditor may sue in the name of the debtor, or of any other person in whose name the debtor might have sued, for recovery of any sum secured or made payable by securities).

Part 5 (regulation 47) relates to abandonment of the goods, providing a procedure to be followed where the enforcement agent makes the controlled goods which are now abandoned available for collection by the debtor. Regulation 47 provides that, where the debtor fails to collect the goods within 28 days, the court may make orders concerning the disposal of the goods.

Part 6 (regulations 48 and 49) deals with underpayments where a person who claims that the goods of which control has been taken belong to him or her, and not the debtor, makes an application to the court under paragraph 60 of Schedule 12 to the Act.

Part 7 (regulations 50 to 55) addresses commercial rent arrears recovery procedure (known as “CRAR”). General provision is made in regulations 50 to 52 relating to authorisation by a landlord to another person to exercise CRAR on his or her behalf, and defining the minimum amount of net unpaid rent under section 77 of the Act in order for CRAR to be exercisable. Regulations 53 to 55 deal with the notice requirements for the landlord's right to recover rent from the sub-tenant under section 81(2) of the Act, including withdrawal of such a notice.