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Entering private property

Information about the power of a sheriff to enter private property.

The powers of the sheriff to enter private property are different according to the reason for entry. This includes the kind of warrant, whether it is a criminal or civil warrant and what that warrant authorises. Generally a sheriff has the power to enter although there are some restrictions on whether they are able to enter by force.

For definitions of civil and criminal warrants see What do sheriffs do?

Search for property

Sheriffs have the power to enter homes to recover property, to search and seize property found there. A sheriff can use ‘reasonable force’ and ask for assistance (for example, from the police) to enter a property, if the sheriff has:

  • asked the owner for permission to enter and the owner has refused entry, without good reason
  • attempted to contact the owner on many occasions without success, or
  • reason to think that the owner may be avoiding being found.

Restrictions on entry

There are restrictions on a sheriff’s power to enter property, for example:

  • The sheriff may only enter premises if they reasonably think there may be property there that could be seized and sold to settle outstanding fines.
  • The sheriff must ask the owner of the property before entering.
  • If the sheriff has to use force they can only come around between 9.00 am and 5.00 pm.

Entry to serve a 7-day notice

The sheriff is not able to force entry to serve a 7-day notice.

Entry to serve an intervention order application

From 3 May 2021, a sheriff may enter premises if they reasonably believe the respondent to a family violence application is there. They must not use any force to enter.

See s. 205A—Family Violence Intervention Order Act 2008 (Vic)(opens in a new window).

Warrant of possession

A sheriff is not able to force entry to execute a warrant of possession. This is generally where they are attempting to remove a person from a property in order to take possession of the property.

Entry to arrest under a criminal warrant

The Sheriff is able to break and enter any premises by force to search for and arrest a person who is named in a warrant if they suspect that the person is at the address.

Warrant to take items you own

A warrant to seize property allows the sheriff to go to your home or business (if you own the business) and take non-secured items to sell. A warrant to seize property is valid for one year. Non-secured items are valuable things that you own outright, for example, your car. Your car will not be seized if it is your primary form of transport and it is worth less than $8150. You can keep household goods that help you live in basic comfort, for example, your fridge, television, washing machine, basic furniture and clothing.

When the sheriff arrives at your house, they will produce the warrant and explain that if you don’t pay the amount required, goods will be seized and auctioned to pay off the debt. Generally, the sheriff will allow you time to get the money, negotiate with the creditor or enter into an instalment order. The sheriff is required to ask you for consent to enter the house. However, they can resort to reasonable force and assistance to enter if you unreasonably withhold your consent, or they believe you are deliberately avoiding the sheriff.

If the sheriff decides to use force and assistance, they may only enter your home between 7 am and 9.30 pm.

The sheriff might take the goods, or just make a list of what is seized. Once the sheriff has listed the goods, you cannot sell or get rid of them.

After the sheriff takes your goods away, they will sell them. If you can pay, you can still try to negotiate with the creditor to stop the sheriff from selling.

Any goods that are taken will be sold at auction or by private sale unless you pay off the debt or negotiate an alternative course of action, such as an instalment order.

More information

Legislation

Sheriff Act 2009 (Vic)

  • s. 3—defines civil and criminal warrants
  • Part 3—sheriff's enforcement functions and powers
  • Part 3, Div 4—powers to enter and search
  • s. 17—power to enter and search connected to 7 day notice
  • s. 21(2)—sheriff must not force entry to premises to serve 7-day notice
  • s. 18—power to break and enter and search in order to arrest
  • s. 19—power to enter and search for recoverable property
  • s. 20—power to enter and take possession of property
  • s. 21—use of force in order to enter premises
  • s. 22—requirements in relation to entering premises to execute civil warrants

See Sheriff Act 2009 (Vic).

Family Violence Intervention Order Act 2008 (Vic)

  • s. 205A—service by the sheriff

See Family Violence Intervention Order Act 2008 (Vic)(opens in a new window).

Updated