Taming rogue auctioneers

By Musyoki Kimanthi

Q:Recently, some people purporting to be auctioneers stormed my business premises without notice and carted away everything. They claimed to be under instructions from a lawyer on the explanation that I owed money to the lawyer’s client. They further explained that they needed to sell my property to recover the debt. Whereas I admit owing the money, isn’t there a legal procedure of carrying out such raids? I was humiliated and not treated in the right manner. Please advise.

Answer: Auctioneers are a necessary lot but also hated in equal measure depending on the nature of the contact they have with business people. Imagine a situation where a businessman is unable to recover a debt from a difficult customer. He even hires a competent lawyer to procure a favourable judgment only for the customer to refuse to pay. The favourable judgment is useless unless auctioneers force such a customer to pay. Auctioneers therefore move business. On the other hand, anyone confronted by these people is bound to feel besieged.

Court officers

Auctioneers are actually officers of the court. They work on the authority of the court and are required to behave in a manner that does not bring it into disrepute. The tragedy today is that most auctioneers are willingly used by cunning lawyers and business people, even for purposes not related with their responsibilities. Haven’t we heard of auctioneers writing demand letters and collecting debts on behalf of their clients without any court order or letter from a lawyer?

The ignorance of the law by most victims of marauding auctioneers only compounds the problem as they quickly obey the illegal commands.

The law defines an auctioneer as a person who sells by auction, and a person who attaches for sale any property in execution of a court order or a contract; sells or offers for sale any property by auction; levies distress for rent; carries out evictions under a court order; or repossess goods from any person pursuant to the provisions of any written law of contract.

All auctioneers are licensed by the Auctioneers Licensing Board, which also supervises their conduct. Anyone is eligible to be appointed an auctioneer with the exception of judges, magistrates and subordinate officers of the court, advocates, public officials, employees of local authorities, parastatals or state corporations.

There is no mention of the level of education though I think some basic understanding of valuation is essential.

Requirements

The Auctioneers Act No. 5 of 1996 as read with Auctioneers Rules of 1997 regulates the conduct of auctioneering. To avoid falling victim to crooks masquerading as auctioneers, you must note that a licensed auctioneer should at all times wear his identity card while conducting business.

Also, although illegal, some auctioneers walk in into a debtor’s premises and without a word cart away goods. The law requires them to first prepare a list of items indicating their specific value and the condition of each item, and the owner or an adult residing or working at the premises must sign such inventory.

The auctioneer must also give the owner of the goods seven days notice within which the owner may redeem the goods by payment of the amount set forth by the court warrant or letter of instruction.

It is only after the expiry of the notice without payment that the auctioneer can auction them.

Disgraceful characters

Just like other professions and trades, auctioneering has been infiltrated by disgraceful characters. We have, for example, cases where auctioneers backdate notices and purport to have served them upon unsuspecting debtors, only to pounce and cart away goods without real notices.

The law provides for punishment of such conduct and anybody with a claim should report to the Auctioneers Licensing Board within a period of one year of the occurrence of the incidence being complained about. Any auctioneer found guilty may be admonished, fined, his licence suspended or revoked and ordered to pay compensation depending on the severity of the charge.

However, we must appreciate that auctioneers work under difficult circumstances.

That someone should simply refuse and/or ignore to pay up his debts and as if that is not enough refuses to obey a court order requiring him to pay calls for the use of force.

It is no wonder, therefore, that auctioneers are at times cruel.