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Distraint
 
 
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Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent
Renting

Renting is an agreement where a payment is made for the temporary use of a good or property owned by another person or company. The owner of the property may be referred to as the lessor and the party paying to use the property as the lessee or renter....
 or other money owed", especially in common law
Common law

Common law refers to law and the corresponding Legal systems of the world developed through legal opinion of courts and similar tribunals , rather than through statute law or Executive ....
 countries. Distraint is the act or process "whereby a person (the distrainor), traditionally even without prior court approval, seizes the personal property of another located upon the distrainor's land in satisfaction of a claim, as a pledge for performance of a duty, or in reparation of an injury." Distraint typically involves the seizure of goods (chattels) belonging to the tenant by the landlord to sell the goods for the payment of the rent.






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Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent
Renting

Renting is an agreement where a payment is made for the temporary use of a good or property owned by another person or company. The owner of the property may be referred to as the lessor and the party paying to use the property as the lessee or renter....
 or other money owed", especially in common law
Common law

Common law refers to law and the corresponding Legal systems of the world developed through legal opinion of courts and similar tribunals , rather than through statute law or Executive ....
 countries. Distraint is the act or process "whereby a person (the distrainor), traditionally even without prior court approval, seizes the personal property of another located upon the distrainor's land in satisfaction of a claim, as a pledge for performance of a duty, or in reparation of an injury." Distraint typically involves the seizure of goods (chattels) belonging to the tenant by the landlord to sell the goods for the payment of the rent. In the past, distress was often carried out without court approval, but today some kind of court action is usually required.

History


In England in 1267 the Statute of Marlborough
Statute of Marlborough

The Statute of Marlborough was a set of laws passed by Henry III of England of England in 1267. There were twenty-nine chapters, of which four are still in force....
 was passed making distraint illegal without a court order.

Procedure

The goods are held for a given amount of time, and if the rent is not paid, they may be sold. The actual seizure of the goods may be carried out by the landlord, the landlord's agent, or an officer of the government, a bailiff
Bailiff

Bailiff is a governor or custodian ; a legal officer to whom some degree of authority, care or jurisdiction is committed. Bailiffs are of various kinds and their offices and duties vary greatly....
 or sheriff officer
Sheriff officer

A sheriff officer is an officer of the Scotland Sheriff Court, responsible for serving documents and enforcing court orders. The jurisdiction of a sheriff officer is limited to the area of their commission , unlike messenger-at-arms ....
 in the United Kingdom or a sheriff
Sheriff

A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country....
 or marshal
Marshal

Marshal is a word used in several official titles of various branches of society. The word derives from Old High German marah "horse" and schalh "servant", and originally meant "stable keeper"....
 in the United States.

Certain goods are protected against distraint - these are called "privileged goods". Such goods include, for example, goods belonging to the state, fixtures, goods delivered to the tenant or debtor for business purposes, the goods of a guest, perishable goods (e.g. food), livestock, gas, water, electricity, and tools of the tenant's trade.

Reform

In the United Kingdom, there have been proposals to reform the remedy of distraint. Concerns have been expressed that the use of the distraint remedy may result in violations of human rights, such as Article 8 of the European Convention on Human Rights
European Convention on Human Rights

The Convention for the Protection of Human Rights and Fundamental Freedoms , was adopted under the auspices of the Council of Europe in 1950 to protect human rights and fundamental Freedom in Europe....
, the right to respect for private life. The Lord Chancellor's Department (now the Ministry of Justice) in May 2001 issued the consultation paper , which proposes abolishing distraint for residential leases, but retaining it for commercial property subject to certain safeguards to ensure compliance with the Human Rights Act 1998
Human Rights Act 1998

The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000....
.

Distraint will be abolished in the UK when the Tribunals, Courts and Enforcement Act 2007
Tribunals, Courts and Enforcement Act 2007

The Tribunals, Courts and Enforcement Act 2007 is an Act of Parliament of the Parliament of the United Kingdom. It provides for several diverse matters relating to the law, some of them being significant changes to the structure of the courts and fundamental legal procedures....
, s.71 comes into force, replacing the remedy, solely for lease
Lease

A lease is a legal document, but can be an speech communication arrangement, which confers a right on one person to possession property ownership to another person to the exclusion of the owner landlord....
s on commercial property
Commercial property

The term commercial property refers to buildings or land intended to generate a profit, either from capital gain or renting income. Commercial property includes office buildings, industrial property, medical centers, hotels, malls, retail stores, shopping centers, farm land, multifamily housing buildings, etc....
, by a statutory system of Commercial Rent Arrears Recovery (CRAR).

Magna Carta
Magna Carta

Magna Carta , also called Magna Carta Libertatum , is an Kingdom of England legal charter, originally issued in the year 1215. It was written in Latin....


Article 61 of the 1215 document extended the law of distraint to the monarch's properties.

Related Links

  • Quia Emptores
    Quia Emptores

    Quia Emptores was a statute passed in 1290 by Edward I of England of Kingdom of England that prevented tenants from alienating their lands to others by subinfeudation....


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