You Can Seize a Judgment Debtor’s Personal Property to Pay Your Judgment

A writ of execution in Texas does permit you to seize your judgment debtor’s non-exempt property and sell it with the proceeds being applied to satisfy your judgment. The property you can confiscate encompasses any non-exempt personal property. Personal property is any kind of movable assets owned by the debtor. However, personal property doesn’t consist of money or investments. And, naturally, personal property does not include real-estate.

Taking Possession of Personal Property

The way in which the sheriff levies on your judgment debtor’s interest in personal property depends on the precise nature of the debtor’s interest in the property. More specifically, it is dependent on whether the judgment debtor is entitled to actual possession of the property.

If the judgment debtor is entitled to actual possession of the property and in fact has possession, the sheriff levies on the property by just taking possession of it. If, on the other hand, the debtor’s interest in the property is a non-possessory interest, the sheriff must provide notice to the person who is entitled to possession of the property (Tex. R. Civ. P. 639). But, the fact that the debtor is not entitled to possession of the property does not stop you from foreclosing on his interest in that property.

Selling Personal Property to Pay Your Judgment

After the sheriff has taken possession of your judgment debtor’s property under a writ of execution, the process starts for the auction of that property. Texas law allows seized personal property to be sold at the location where it was seized, on the steps of the courthouse in the county where the property is found or at another site if that location is more convenient for showing the property to purchasers because of the nature of the property itself.

Before having the sale, the sheriff must post a notice of the sale at the courthouse door and in the place where the sale is to happen (Tex. R. Civ. P. 649). The notice must be posted for 10 successive days immediately prior to the sale.

If the judgment debtor only has an interest in the property but not the right of possession of the property, the property being sold will not have to be displayed at the sale. But, if the judgment debtor has the right of sole possession of the property in question, it can’t be sold without being presented for viewing by those attending the sale.

As soon as the sheriff sells the judgment debtor’s personal property to the highest bidder, he releases possession of that property to the winner. If the property sold wasn’t property to which the debtor had the right of sole possession, the sheriff presents the winner a bill of sale showing that the winner now has the same interest as previously held by the judgment debtor. Obviously, the money paid by the winning bidder are given to you to apply to the outstanding balance of your judgment.

Harvey L. Cox has been practicing law in Texas since 1990. He has worked extensively in the areas of commercial and consumer collections, consumer protection, IRS problem solving, asset protection planning, estate planning, and child advocacy.

He now has a limited practice and devotes his time to teaching and writing with a desire to help consumers and small businesses find answers to their everyday legal and business questions.

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Personal Property Vs Real Property – Understanding the Difference, Avoiding the Lawsuits

Let’s take a look at Personal Property as it compares to Real Property. This is a topic that comes up a lot when a real estate transaction gets difficult and the two parties (buyer and seller) begin to argue over what stays in the house and what doesn’t according to the contract and law.

Personal property is defined as all property that can be owned and does not fit the definition of real property. In other words, if it is not real property then it is personal property. An important distinction between the two is that personal property is movable. Personal property is also referred to as chattels. For those of you who like to work on expanding your vocabulary.

Next let’s look at some examples of personal property including manufactured housing, plants, crops, and classifications of fixtures.

Manufactured Housing is defined as dwellings that are not constructed at the home site. These are normally trucked in and placed on the property. For those of you breaking down the word manufactured, and wondering why all homes aren’t considered manufactured, since they are after all “manufactured” think of mobile homes as manufactured. Here’s the tricky part, if the manufactured home has been attached to the property then it is REAL property, if it is just sitting there and hooked up to utilities then it is PERSONAL property. Why would it matter? well, if it is REAL property, then the property taxes are higher because the government sees the homes as essentially adding value to the land it sits on.

Plants and Crops: There are two categories here and both have their differences. Trees, perennials, shrubbery and grass that do not require annual cultivation are considered real property or real estate. And these transfer with the sale of the property. Crops on the other hand that are harvested on an annual basis, are considered emblements. Or personal property and in the sale of the property, the crops that are being produced stay with the seller for that current harvest.

Here are some additional details… if an item on the land, lets say a tree (which is real property) is cut down and separated from the land (called severance), then it becomes personal property. It is also possible to do the same thing but the other way. If the tree that was cut down is used to build a home on the property, through annexation, it become real property.

Fixtures – these are often the hot topic in the sale of a home because sellers often take their fixtures with them when they move, and that is against the agreement set out by the contract. Knowing what a fixture is, will help you understand what to expect stay with the home and what does not. A fixture is personal property that has been affixed (attached) to the land or building and it becomes real property. Remember real property stays with the home when it is sold.

How do you test if an item is a fixture or personal property? Here are the three basic tests the court will use to decide.

1. Method of Annexation – how permanent is the method of attachment? Can the item be removed without damaging the surrounding property?

2. Adaptation to Real Estate – Is the item being used as real property or personal property? For example a fridge is normally considered personal property because it can be removed easily. However if the refrigerator has been adapted to match the kitchen cabinetry, it become a fixture.

3. Agreement – Have the parties agreed on whether the item is real or personal in a purchase offer.

The overall rule is to determine, what is the purpose of the fixture? Is it’s function to be personal property or a real property.

Trade Fixtures are the exception to the rule. A trade fixture is property used in the course of business. Often it will be attached to the property and resemble real property. However, if it is something used as part of the seller’s trade, it is considered personal property and does not stay with the home.

Often home buyers will be looking at homes and what draws them to the home will be certain aspects of the home. Fixtures such as entertainment centers, backyard gazebos and surround sound speakers are often considered fixtures and real property that will stay with the home. However a home owner may consider those items of great value and may be planning on taking them to their new home. It is very important to identify what fixtures you want and expect to stay in the home and put those items in the purchase agreement so everyone will be on the same page and in agreement from early on.

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