You may remember the ‘Scenes From A Repossession’ post and some rather stern comments (possibly from the legal ‘community’) that the man stopping the sheriff was talking constitutional hoo ha.
This has just come in from “Trevor’:
“I only came across this last night and it made for fascinating viewing. Let’s analyse it rationally and calmly from a legal point of view.
Failure to pay a debt is not a criminal offence. In mortgage cases, this is a civil matter. It is an argument between two sides about whether a contract has been broken. The law in this area has nothing to do with what is morally right or just. As this is the case, there is no need to go into that issue. It is irrelevant.
You are absolutely 100% correct; nobody has the right to enter your land/property except for certain clearly defined purposes (such as the gardai in CRIMINAL matters, TV licence inspectors, environmental health etc). If somebody other than those individuals ask to enter your land/property you are quite within your rights to say no and request them to leave.
You are correct to say that the constitution offers protection for this matter also. This whole area needs to be challenged.
The sheriff has no legal right to enter on to your property.
As no criminal offence has been committed by the property owner, the gardai have no right to enter your land. They can ask and you are perfectly entitled to say no. Furthermore, it could also be argued if they do enter your land without your permission, (gardai or sheriff) they have committed the tort of trespass, for which they can be held liable for in the courts.
The separation of powers issue between the sheriff/registrar is another clear-cut case of a severe problem which has been allowed to quietly fester for years, simply because the main victims of the process were powerless individuals who hadn’t got the money to bring this to court.
(I would also suspect that part of the reason for the relatively low number of repossessions is because the banks/courts know that there are major problems with the law here. The banks & government then spin this to give the appearance that they are acting fairly.)
Once again, the main reason why they could get away with it for so long was because usually individuals who are in such a situation have little or no means to enforce their legal rights. It is too expensive to go to court.
The law is selectively interpreted by the registrar/sheriff and because people have usually been traumatised or shocked by the situation they find themselves in, they feel intimidated by a delegation with the gardai in tow turning up on their doorsteps. They feel that they have two choices; either go along with it or else they do something silly which then transforms the issue into a criminal matter.
I would also question the practice of the gardai being present in such cases. Although I am sure that sheriffs have been attacked in the past, the mere presence of the gardai serves to further intimidate the individual homeowner. The gardai have no authority to intervene unless a crime is committed during the process of the sheriff trying to enter your land (such as punching him). That’s it. If the guards do anything else they are probably acting unlawfully.
The gardai, if they are to retain the consent and respect of the community in which they operate should be very careful not to allow themselves to be drawn into these matters. The gardai need to actively demonstrate that they are impartial and not take one side or the other of the argument.
Once again, no crime has been committed through a failure to pay any debts. The gardai should not intervene unless a criminal offence is committed.
The lesson is; keep calm, don’t be intimidated, have witnesses who stay cool, video everything (the guards have no power to stop you), expain your points clearly, consistently and repeat them over and over again (don’t swear). The sheriff may attempt to bamboozle you with documents and paperwork but don’t get drawn into an argument in which he sets the rules.
The whole situation is basically a con trick based on intimidation and an illusion of legality. The simple fact is that the sheriff cannot enter your property unless you permit him to do so.