Does a Virginia sheriff have to take a 10% cut from a sheriff's sale, or can the full proceeds go to the creditor?

Plain-English summary

Albemarle County Sheriff Chip Harding had a practice: when his office ran a sheriff's sale (rare in Albemarle), he often chose not to collect the 10% commission, so the full amount could go to the judgment creditor. The Auditor of Public Accounts told him this was wrong, the commission was mandatory. Harding asked the AG.

The AG: the Auditor was wrong. The 10% commission is discretionary.

What § 8.01-499 actually says. After describing how the officer who receives money from execution must return it to the court, the statute provides: "After deducting from such money a commission of 10 percent and his necessary expenses and costs, including reasonable fees to sheriff's counsel, he shall pay the net proceeds, and he and his sureties and their representatives shall be liable therefor, in like manner as if the same had been made under a writ of fieri facias on the judgment."

The plain language "authorizes an officer to collect a ten percent commission" but doesn't mandate it. The statute then directs what to do with the remainder: pay the net proceeds in the same way as for a fieri facias.

Why "shall" doesn't make it mandatory. Even if the statute had explicitly said the sheriff "shall" collect the commission, that would not necessarily make it mandatory. Jamborsky v. Baskins (1994) confirms the long-standing Virginia rule: "the use of 'shall,' in a statute requiring action by a public official, is directory and not mandatory unless the statute manifests a contrary intent." Earlier authority (Nelms v. Vaughan, 1888): "A statute directing the mode of proceeding by public officers is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute."

So "shall" applied to public officer procedures defaults to directory, not mandatory, unless the statute clearly says otherwise. Section 8.01-499 does not.

Why the difference matters. Sheriffs are constitutional officers "whose duties and authority are controlled by statute" (Keathley v. Vitale, citing Hilton v. Amburgey). They are also "free to discharge [their] constitutional duties in a manner in which [they] deem most appropriate" except as limited by law (1984-85 AG opinion). Reading § 8.01-499 as discretionary is consistent with this principle.

The contrast with mandatory fee collection. The AG noted in a footnote that Va. Code § 15.2-1609.3(A) does use mandatory language: "Every sheriff, and every sheriff's deputy shall collect all fees and mileage allowances provided by law for the services of such officer." That section reaches "fees," and the General Assembly's word choice matters: "[w]hen the General Assembly uses two different terms in the same act, it is presumed to mean two different things" (Forst v. Rockingham Poultry). A commission is not a fee for these purposes; § 15.2-1609.3(C)-(D) confirms the distinction (a sheriff who neither sells nor receives payment is not entitled to a commission but may still take a fee).

The companion question: what to do with collected commission. If the sheriff does collect the commission, § 15.2-1615 governs. "All money received by the sheriff shall be deposited intact and promptly with the county or city treasurer or Director of Finance." The two narrow exemptions in § 15.2-1615(A) don't apply here.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 8.01-499 and the related sheriffs' fee statutes have been amended periodically. The directory/mandatory distinction in Jamborsky remains good Virginia law.

Common questions

What is a sheriff's sale?
A judicial sale of debtor property to satisfy a money judgment. The judgment creditor obtains a writ of execution (often a fieri facias), the sheriff levies on the property, and the property is sold at public auction.

Why would a sheriff waive the commission?
To maximize the amount that goes to the judgment creditor. In small-value sales, the commission can be the difference between the creditor getting paid in full versus a partial recovery. In community-relations terms, waiving the commission also signals the sheriff isn't profiting from a process that often involves financially distressed parties.

Can the sheriff selectively waive in some cases but charge in others?
The opinion treats the commission as discretionary. That implies the sheriff can decide case by case. Selective enforcement raises potential equal-protection or favoritism concerns, but the statute does not impose a uniformity requirement.

Does the same rule apply to other sheriff revenue?
No. Fees (under § 15.2-1609.3(A)) are mandatory. The directory/mandatory distinction is about commissions on sales, not fees for services.

What happens to the commission money once deposited?
Section 15.2-1615 sends it to the county or city treasurer or Director of Finance. The locality's general fund (or a designated fund) is the destination. The funds are not retained by the sheriff or the sheriff's office.

Who decides what counts as a "necessary expense" of the sale?
The sheriff makes the initial determination. The deductions are subject to review by the court that ordered the execution.

What if the sheriff collects the commission but doesn't deposit it properly?
Failure to deposit per § 15.2-1615 exposes the sheriff to personal liability and potential bonding-related claims. The deposit requirement is mandatory.

Can a judgment creditor sue if the sheriff collects the commission?
The statute authorizes the commission, so a creditor cannot demand the sheriff waive it. Conversely, if the creditor wants the sheriff to waive it (and the sheriff agrees), the creditor benefits without legal exposure.

Background and statutory framework

• Va. Code §§ 8.01-466 to 8.01-505: writ of execution procedures.
• Va. Code § 8.01-499: authority to deduct 10% commission and necessary expenses from sheriff's sale proceeds.
• Va. Code § 15.2-1609: sheriff exercises all powers conferred by general law.
• Va. Code § 15.2-1609.3: mandatory collection of fees (distinguished from commissions).
• Va. Code § 15.2-1615: requirement to deposit money received by the sheriff with the county/city treasurer or Director of Finance.

The interpretive moves:

• Plain text of § 8.01-499 authorizes but does not require the commission.
• Jamborsky directory/mandatory rule: "shall" for public officer procedures is directory unless clearly otherwise.
• General Assembly's use of "shall collect" in § 15.2-1609.3(A) for fees shows it knows how to mandate when it wants to.
• Distinction between commission (discretionary) and fee (mandatory).

Citations

• Va. Code § 8.01-499
• Va. Code § 15.2-1609
• Va. Code § 15.2-1609.3
• Va. Code § 15.2-1615
• Keathley v. Vitale, 866 F. Supp. 272 (E.D. Va. 1994)
• Hilton v. Amburgey, 198 Va. 727, 96 S.E.2d 151 (1957)
• Jamborsky v. Baskins, 247 Va. 506, 442 S.E.2d 636 (1994)
• Commonwealth v. Rafferty, 241 Va. 319, 402 S.E.2d 17 (1991)
• Nelms v. Vaughan, 84 Va. 696, 5 S.E. 704 (1888)
• Forst v. Rockingham Poultry Mktg. Coop., Inc., 222 Va. 270, 279 S.E.2d 400 (1981)
• Simon v. Forer, 265 Va. 483, 578 S.E.2d 792 (2003)
• Alger v. Commonwealth, 267 Va. 255, 590 S.E.2d 563 (2004)
• 2003 Op. Va. Att'y Gen. 172
• 2001 Op. Va. Att'y Gen. 20
• 1997 Op. Va. Att'y Gen. 18

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-101_Harding.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

December 20, 2013

The Honorable J. E. "Chip" Harding
Sheriff, County of Albemarle
411 East High Street
Building B
Charlottesville, Virginia 22902

Dear Sheriff Harding:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether § 8.01-499 of the Code of Virginia mandates the collection of a commission from a sheriff's sale or whether a sheriff has discretion not to collect a commission. You also ask whether that section mandates what the sheriff is to do with the commission if and when it is collected.

Response

It is my opinion that, pursuant to § 8.01-499, a sheriff has discretion to collect or not collect a commission from a sheriff's sale. It is further my opinion that § 15.2-1615 directs what the sheriff must do with the money should he receive a commission.

Background

You relate that sheriff's sales are rare in the County of Albemarle and that you have elected in the past to not collect a commission in order to allow the full amount of the sale to go to the judgment creditor. You further relate that the Commonwealth of Virginia Auditor of Public Accounts, Shenandoah Valley Region Team, interprets § 8.01-499 as making collection of such commission mandatory.

Applicable Law and Discussion

Sheriffs are constitutional officers "whose duties and authority are controlled by statute."[1] Section 15.2-1609 of the Code of Virginia provides that "the sheriff shall exercise all the powers conferred and perform all the duties imposed upon sheriffs by general law." Except as limited by law, constitutional officers are "free to discharge [their] constitutional duties in a manner in which [they] deem most appropriate."[2]

As a means of enforcing monetary judgments, Virginia law permits sheriffs to sell tangible property of a debtor when such property has been properly levied.[3] As part of this process, § 8.01-499 of the Code of Virginia provides the following:

An officer receiving money under this chapter shall make return thereof forthwith to the court or the clerk's office of the court in which the judgment is entered. For failing to do so, the officer shall be liable as if he had acted under an order of such court. After deducting from such money a commission of 10 percent and his necessary expenses and costs, including reasonable fees to sheriff's counsel, he shall pay the net proceeds, and he and his sureties and their representatives shall be liable therefor, in like manner as if the same had been made under a writ of fieri facias on the judgment.

The plain language of the statute authorizes an officer to collect a ten percent commission from the money realized from a sale.[4] No express language in the statute mandates collection of said commission. Rather, it authorizes collection of the commission and then directs what the sheriff should do with the remainder: "he shall pay the net proceeds ... in like manner as if ...."[5]

The General Assembly knows how to express its intention.[6] There is no explicit direction that the sheriff must charge the commission.[7] Moreover, even if the statute were to provide that the sheriff "shall" charge the commission, that would not necessitate a finding that the commission must be charged. As the Virginia Supreme Court has noted,

the use of 'shall,' in a statute requiring action by a public official, is directory and not mandatory unless the statute manifests a contrary intent. As this Court explained in Commonwealth v. Rafferty, 241 Va. 319, 402 S.E.2d 17 (1991), '[a] statute directing the mode of proceeding by public officers is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute.' Id. at 324, 402 S.E.2d at 20 (quoting Nelms v. Vaughan, 84 Va. 696, 699, 5 S.E. 704, 706 (1888) (citation omitted)).[8]

Accordingly, I conclude that while § 8.01-499 authorizes a sheriff to collect a ten percent commission, it does not require him to do so.[9]

With respect to your second question, § 8.01-499 does not address what must be done with a commission when a sheriff elects to collect it. Thus, the ten percent commission authorized by § 8.01-499 would fall within the broad scope of § 15.2-1615, which provides that, "[a]ll money received by the sheriff shall be deposited intact and promptly with the county or city treasurer or Director of Finance."[10] That section's mandate is clearly stated and by its terms applies to all money received by the sheriff.[11] Therefore, I conclude that a sheriff choosing to collect the commission deposit the funds with the county or city treasurer or Director of Finance.

Conclusion

Accordingly, it is my opinion that it is within a sheriff's discretion whether or not to collect a commission under § 8.01-499. It is further my opinion that if a commission is collected, the sheriff must comply with § 15.2-1615.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] Keathley v. Vitale, 866 F. Supp. 272, 276 (E.D. Va. 1994) (citing Hilton v. Amburgey, 198 Va. 727, 96 S.E.2d 151 (1957)); see also Va. Const. art. VII, § 4 ("The duties and compensation of such officers shall be prescribed by general law or special act.").

[2] 1984-85 Op. Va. Att'y Gen. 284, 284.

[3] See Va. Code Ann. §§ 8.01-466 through 8.01-505 (2012 & Supp. 2013) (establishing process for obtaining and enforcing a writ of execution).

[4] 2003 Op. Va. Att'y Gen. 172, 173; 2001 Op. Att'y Gen. 20, 21.

[5] Section 8.01-499 (2012). Procedures respecting the payment of proceeds following execution of a writ of fieri facias are set forth at Va. Code Ann. §§ 8.01-483 through 8.01-486 (2007).

[6] See, e.g., 2007 Op. Va. Att'y Gen. 133, 136 n.4. "We 'assume that the legislature chose, with care, the words it used when it enacted the relevant statute.'" Alger v. Commonwealth, 267 Va. 255, 261, 590 S.E.2d 563, 556 (2004) (quoting Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)).

[7] Compare § 8.01-499 with Va. Code Ann. § 15.2-1609.3(A) (2012) (the latter providing in pertinent part that "[e]very sheriff, and every sheriff's deputy shall collect all fees and mileage allowances provided by law for the services of such officer.") (emphasis added). A "commission" is not a "fee" under this section, for the statute later provides that, if a sheriff neither sells the property nor receives payment, he is not entitled to any commission but may still take a fee. Section 15.2-1609.3(C)-(D) (emphasis added); and see 1982-83 Op. Va. Att'y Gen. 260, 261. Rules of statutory construction dictate that "[w]hen the General Assembly uses two different terms in the same act, it is presumed to mean two different things." Forst v. Rockingham Poultry Mktg. Coop., Inc., 222 Va. 270, 278, 279 S.E.2d 400, 404 (1981), quoted in Simon v. Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003). Furthermore, although not specifically discussed, the difference between a commission and a fee repeatedly has been recognized in prior opinions: See 2001 Op. Va. Att'y Gen. 20, 21; 1997 Op. Va. Att'y Gen. 18, 19; 1962-63 Op. Va. Att'y Gen. 101, 102.

[8] Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994).

[9] This is consistent with a prior opinions of this Office, which noted in passing that a sheriff "may deduct" the commission referenced in § 8.01-499. 2001 Op. Va. Att'y Gen. 20, 21; 1997 Op. Va. Att'y Gen. 18, 19.

[10] Va. Code Ann. § 15.2-1615(A) (2012).

[11] Section 15.2-1615(A) includes two exemptions to this requirement, however, they are inapplicable to your inquiry.