Distress - A Toothless Tiger?

The law of distress enables landlords to recover arrears of rent without the need to commence court proceedings. Generally bailiffs are instructed to attend upon tenants' premises to seize sufficient assets to cover the arrears and the bailiff's costs. Not surprisingly distress has come in for much criticism as tenants are not given the opportunity of defending, particularly if the arrears are disputed, and the ability to levy distress, especially in relation to residential premises, is arguably a breach of Human Rights.

Consequently, the Lord Chancellor's department has undertaken a review of this remedy within the scope of its general review of enforcement methods. Following a period of consultation, the Lord Chancellor's department propose the following way forward:

Landlords will only be permitted to distrain for rent, not service charge as well, in relation to commercial premises where the rent outstanding exceeds four weeks or one calendar month. Distress for rent will be abolished for residential premises.

Fully certified bailiffs will be required to be present when distress is levied.

Distress will only be permitted to take place on a working day between 8.00am and 8.00pm.

Entry will only be permitted by normal means, namely entry through unlocked outer doors, including French window but not through windows, and normal access to the outer door of premises across a drive, a yard, or a garden. All other forms of entry will be considered forcible and prohibited when levying distress.

Landlords must give tenants 72 hours' notice of the levying of distress which does not include bank holidays. Further, once distress has been levied, the tenant must be given 14 days' notice of any sale of the goods.

The goods should not be sold to anyone connected with the landlord or the bailiff without the consent of the debtor.

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