Distress - Definition - Law Dictionary Home Dictionary Definition distress

Definition :

Distress [fr. distringo, Lat., to bind fast; districtio, Med. Lat., whence distraindre, Fr.], a taking, without legal process, of a personal chattel from the possession of a wrong-doer into the hands of a party grieved, as a pledge for the redressing an injury, the performance of a duty, or the satisfaction of a demand.

This remedy may be resorted to by a landlord for recovery of rent in arrear, by a rate collector or tax collector for recovery of rates or taxes, and by justices of the peace for the recovery of fines due on summary convictions.

A distress may be made of common right for the rent payable by a tenant to a landlord, technically termed 'rent-service,' and by particular reservation, or under s. 121 of the (English) Law of Property Act, 1925, for rent-charges, and also for rents-seck since the (English) Landlord and Tenant Act, 1730 (4 Geo. 2, c. 28), s. 5, which extended the same remedy to rents-seck, rents of assize, and chief-rents, and thereby in effect abolished all material distinction between them.

Distress may also be made at Common Law on cattle damage feasant, and by statute for rates and taxes, and for tithe annuities which have been substituted for tithe rent-charge (q.v.) [(English) Tithe Act, 1936, s. 16].

If a tenant, aftr his rent is in arrear, fradulently or clandestinely remove his own chattels off the premises, and does not leave thereon sufficient to meet the arrears, Tomlinson v. Consolidated Credit Corporation, (1889) 24 QBD 135, the landlord may within thirty days take and seize such goods wherever found (11 Geo. 2, c. 19, ss. 1-3, 7).

All chattels and personal effects found upon the premises may be distrained by a landlord, with the following exceptions:-

(1) Fixtures [see Provincial Bill-posting Co. v. Law Moor Iron Co., (1909) 2 KB 344]; (2) Animals fer' natur': (3) Goods delivered to a person in the way of his trade, as a watch sent to a watchmaker to be repaired; (4) Things in the custody of the law; (5) An ambassador's goods, by the Diplomatic Privileges Act, 1708 (7 Anne, c. 12), s. 3; (6) The goods of an under-tenant, lodger, or other person not having any beneficial interest in the tenancy, by the (English) Law of Distress Amendment Act, 1908 (8 Edw. 7, c. 53), if a declaration is made as required by the Act that the immediate tenant, in respect of whose rent the distress is made, has no property or interest in the goods; (7) Woollen, cotton, or silk looms, by 6 & 7 Vict. c. 40; (8) Gas-meters, being the property of a gas company incorporated by statute, by 10 Vict. c. 15, s. 14; (9) Railway rolling stock in works not belonging to any tenant thereof, by the (English) Railway Rolling Stock Protection Act, 1872 (35 & 36 Vict. c. 50); (10) Wearing apparel and bedding of the tenant or his family and the tools and implements of his trade to the value of 5l., by the (English) Law of Distress Amendment Act, 1888 (51 & 52 Vict. c. 21), s. 4, unless the interest of the tenant has expired and possession has been demanded and distress is made not earlier than seven days after demand of possession, see Boyd v. Bilham, (1909) 1 KB 14. All the above are absolutely privileged, as also things in actual use.

(11) Beasts of the plough and sheep, by 51, Hen. 3, st. 4; and (12) Tools of trade above 5l. in value, both of which are privileged 'sub modo' or conditionally, that is, only if there be other sufficient distress on the premises.

Also, on agricultural holdings; (13) Hired machinery and breeding stock absolutely; and (14) Agisted stock, conditionally.

A distress cannot be made in the night, i.e., after sunset and before sunrise (except in the case of cattle damage feasant), nor on the day of rent becoming due; but must be made within six years from its becoming due. The Landlord and Tenant Act, 1709, (8 Anne, c. 18) (commonly numbered 14), ss. 6, 7, gives a landlord power to distrain within six months after determination of the lease, but it must be made during the continuance of the landlord's title or interest, and also during the possession of the tenant. By the Real Property Limitation Act, 1874, s. 1, distresses for the recovery of any rent may be made at any time within twelve years next after the time at which the right to make them shall have first accrued; but (by s. 42 of the (English) Real Property Limitation Act, 1833 (3 & 4 Wm. 4, c. 27) no arrears of rent can be recovered by distress but within six years next after the same shall have become due, etc. A distress must be made upon the land whence the rent issues, and the whole of what is due should be distrained for at one time. the outer door of the house can in no case be broken open; but if the outer door be open the person distraining may justify breaking open an inner door or lock to find any goods distrainable.

The landlord's powers are chiefly regulated by the (English) Act of William and Mary, 2 W. & M. s. 1, c. 5 (under which the power to sell was first obtained, the goods being at Common Law taken by way of pledge only), as amended by the (English) Law of Distress Amendment Act, 1888 (51 & 52 Vict. c. 21), which made applicable to all tenancies some of the provisions applied to agricultural tenancies only by the (English) Agricultural Holdings Act, 1883.

The (English) Act of William and Marry allows the sale only after written notice of the distress, and gives double damages against any person distraining and selling if no rent is due.

The same Act also requires appraisement before sale in all cases, but the (English) Act of 1888 dispenses with it unless it be required in writing by the tenant or owner of the goods; and enacts also that the goods must, at the request of the tenant or owner, be removed to a public auction room, and there sold. The (English) Act of William and Mary postponed the power of sale for five days, and this period is extended, by the Act of 1888, to not more than fifteen on the written request of the tenant or owner. The Act of 1888 also requires that no person shall act as a bailiff to levy a distress for rent unless he be authorized so to act by the certificate of a county Court judge, and empowers the Lord Chancellor to make rules from time to time for regulating the security to be required from bailiffs, and the fees, charges, and expenses of distress, and also for carrying into effect the objects of the (English) Act of 1888, and the Law of Distress Amendment Act, 1895 (58 & 59 Vict. c. 24), has extended the power of a county Court judge to cancel a bailiff's certificate, and otherwise amended the Act of 1888; and see the County Courts Act, 1934, ss. 121, 134, 153 and 193, and RENT REDUCTION ACTS.

In addition to the above provisions in favour of tenants generally, agricultural tenants enjoy three special privileges under the (English) Agricultural Holdings Act, 1923 (see that title). These are: (1) that the six years' arrears of rent recoverable from other tenants are reduced to one year; (2) that agricultural or other machinery on hire, and live stock on hire for breeding purposes, are absolutely exempted, while agisted stock can only be distrained if there be no other distrainable goods upon the premises, and then only for the amount due to the tenant for their keep; and (3) disputes as to distress may be determined either by a county Court judge or a justice of the peace.

The (English) Law of Distress Amendment Act, 1908 (see above), provides (s. 2) for the determination of distress disputes under that Act by a magistrate or justices, and also enables (s. 6) a 'superior landlord' to require payment of rent direct to himself whenever the immediate tenant is in arrear. See Shenstone v. Freeman, (1910) 2 KB 84; and for statutes and general law relating to the subject see Smith's Leading Cases, sub tit. Simpson v. Hartopp; Oldham and foster's Law of Distress; Woodfall's L. and T.; Foa, Landlord and Tenant; and Chit. Stat., tit. 'Landlord and Tenant.' See also BANKRUPTCY; WINDING-UP; PREFERENTIAL PAYMENTS.