Distress
Overview
Distress is an ancient remedy by which a person is entitled to take the goods of another to compel performance of a duty or in satisfaction of a debt without a court order or process. By statute, distress is allowed for the collection of certain taxes, rates, fines and enforcement of court orders by courts of summary jurisdiction.
At common law, a landlord has a right of distress in respect of the tenant’s goods. The remedy has been rarely used in modern times. It is proposed that this right be abolished by the forthcoming landlord and tenant legislation.
It is prohibited in respect of residential lettings and is utterly inconsistent with the Residential Tenancies legislation. It is unlikely to be compatible with Article 40.5 of the Constitution, which protects the inviolability of the dwelling house
Distress existed at common law in relation to the services obligations on ancient tenures associated with land. Many of these tenures became obsolescence many centuries ago and have been abolished by the 2009 land law reforms, in so far as any continue to subsist.
Goods taken in distress are deemed to be pledged at common law and there was no power of sale. However, statutes have given powers of sale. Old statute law has limited the goods which may be distrained and made provision for the manner of distress.
Contractual Distress
A right analogous to distress may be conferred by agreement. However, public policy issues may arise in relation to action, which might prospectively lead to a breach of the peace.
A contractual right of distress may be construed as a licence to end property. Issues arise as to whether and to what extent it can be made irrevocable. See generally the sections on licenses.
A deed giving the power of distress for debts is a bill of sale. Accordingly, it must be registered or be void as against creditors and in bankruptcy.
Ancient Rent Types
Distress for rent was historically available for arrears of rent. It is also available in respect of other classes of property interest with rent type obligations.
Distress was available where rent service existed under feudal tenure. See the articles on historical interests in land. These ancient rights associated with particular classes of ownership between lords and their tenants carried rights of enforcement by distress.
A rentcharge is a liability issuing out of land. Historically, it was enforceable by distress. A rent seck was a variant that originally carried no right of distress.
A rent service associated with a tenure might be converted into a rent seck if it became separated from the seignory to which it related. This could happen if the lord disposed of the right to receive the rent without conveying the property, seignory or reversion.
Common Law Distress
The right between landlord and tenant to distrain is a common law right. The right entitled the landlord to take tenant’s goods and hold them until rent is performed. Under ancient statutes, a right of sale was granted unless sums were paid within five days.
The right at common law existed when the following conditions applied
- relationship of landlord and tenant
- rent reserved under the lease referable to the land (e.g. not easements)
- arrears of rent
Provision might be made for days of grace. Where rent was payable, whether, in arrears or advance, goods may be distrained the day after which it fell due.
The landlord must have a reversion. The mere right to collect the rent is not sufficient. The sums must be referable to rent and not to other payments under the lease. The rent must be certain and must be in arrears.
The landlord with the immediate reversion may distrain against one of a number of joint tenants for the whole rent. This binds his fellow tenants.
Mortgages and Receivers
The relationship of mortgagee and mortgagor sale does not give a right to distrain even where the mortgage, technically was by way of a lease. This is no longer possible after the 2009 reform.
Where the mortgage was granted after the lease, the mortgagee may become entitled to the same reversionary rights against the lessee as the mortgagor had. In the case of a mortgage created by charge, there was English caselaw that held that the mortgagee had the same rights as a mortgage by demise, including the right to distrain.
The lessee must continue to pay rent to the mortgagor until he receives notice from the mortgagee of the intention to take possession or enter into receipt of the rents. Thereafter, it may be paid to the mortgagee, and it appears that at common law, the mortgagee may distrain for the same.
In the case of leases granted after the mortgage, the same must be granted pursuant to a power in the mortgage. The statutory power is generally varied in the mortgage deed. The question of whether the tenant becomes a tenant of the mortgagee depends on the circumstances.
A receiver appointed by the court may distrain for one year’s rent without court sanction at common law. For rent above this, the consent of the court is required.
In the case of a receiver appointed out of court, the power to collect rent of itself did not create the right. The right may be granted by express language and the receiver might be given a power of attorney.
Where a receiver was appointed by the mortgagee under the Conveyancing Act 1881, he had the statutory right of distress in the name of the mortgagor. This has not been reenacted for post-November 2009 mortgages under the land law reforms.
Distrainable Goods
Presumptively any goods found on the premises may be distrained. However, exceptions existed at common law and were added to by statute.
At common law, certain things were part of the land and were not distrainable goods. This includes growing crops as well as certain harvested crops.
Goods under execution of the law, State goods and goods of ambassadors could not be subject to distress.
Things given to a given person exercising a public trade were privileged from distress for rent due. The trade must be carried on for the public generally.
Fixtures may not be distrained. This includes things physically fixed to the building and also things symbolically linked, such as keys. Whether or not something is a fixture is a question of fact. The issues disclosed in the context of real property in other parts of disguise.
Things in actual use are privileged. This includes a horse while ridden or tools while in a person’s hand.
Perishable articles which can not be restored and things that may be necessarily damaged by removal were exempt from distress.
Money could not be distressed unless it was in a bag or receptacle so that it could be identified.
Wild animals were exempt from distress. Tamed animals, including dogs, were liable to distress, as well as animals kept in cages. Certain privileges arise in relation to livestock and farm animals by statute
Statutory Exemptions
Wearing apparel tools and implements of trade may not be distrained by statute. The monetary amounts are set out in the statute and are out of date, the Law of Distress Amendment Act 1888. Where such things are wrongly removed, an application may be made to a court with summary jurisdiction to restore them.
A wide range of statutes exempts particular items and articles from distress. They include gas and water fittings, electrical fittings, railways stock. There is legislation in respect of farm machinery breeding stock. There are ancient statues in respect of removal of apparatus, tools and material in the textile trade.
Certain goods may only be taken if there is no other sufficient distress. This includes certain animals and beasts, growing crops and certain instruments of trade. Tools and instruments of trade or of professionals may only be distrained if there are no other goods sufficient to cover the rental arrears.
Protections
At common law, a landlord could distrain all goods on the premises. There were exceptions to this principle. However, by statute, additional protection was given to lodgers or tenants and other persons not being tenants of the premises, not having any interest in the tenancy. Law of Distress Amendment Act 1908 which is expressed to be applicable in urban areas in Ireland.
The legislation does not exempt goods belonging to the husband or wife of the tenant whose rent is in arrears. The additional protections
Other exceptions include
- goods held under a bill of sale or hire purchase agreement or settlement
- goods in the possession order or disposition of tenant with the consent of the true owner
- goods of a partner of the immediate tenant
- goods belonging to and in the offices of any company or corporation on premises the immediate tenant whereof is a director or officer, or in the employment of such company or corporation:
- goods of a partner of the immediate tenant;
- goods (not being goods of a lodger) upon premises where any trade or business is carried on in which both the immediate tenant and the under tenant have an interest;
- goods (not being goods of a lodger) on premises used as offices or warehouses where the owner of the goods neglects for one calendar month after notice (which shall be given in like manner as a notice to quit) to remove the goods and vacate the premises;
If a landlord levies or authorizes distress levied on furniture, goods and chattels of persons protected by the Act, the persons protected may serve a notice and declaration in writing setting out that the immediate tenant has no right of property or beneficial interest in the same and confirming that the goods are in their lawful possession and are not goods to which the Act is expressed not to apply.
The inventory of the goods must be exhibited in the declaration. The legislation is not specified when the declaration must be served. If the landlord proceeds the sale within five days, an action may still lie for the persons protected by the Act, notwithstanding his statutory right of sales.
Where the superior rent is in arrear, the superior landlord may require the sublessee to pay the rent to him. Subject to statutory conditions, the subtenant may deduct this in the rent payable to his immediate landlord so that the payment to the superior landlord is in satisfaction.
If a superior landlord or other agent employed by him after being served with notice and declaration, levies distress or proceeds with the process is guilty of an offence.
The person protected may apply to a court of summary jurisdiction for an order restoring the goods. The landlord may be liable in separate civil proceedings for unlawful distress.
Restrictions
Distress may not be made at night. This is the time between sunset and sunrise. Distress may not take place on a Sunday.
Demand is not necessary in respect of distress. A lease may provide that expressly or implicitly to the contrary.
The right to distress is lost if the landlord ceases to hold the reversion. If the reversion is transferred or assigned, the right is lost. Payment of the rent extinguishes the right.
If the tenant tenders the rent, the right is lost if it is not accepted by the landlord. The rent, together with proper costs, must be tendered.
Distress may only be made in respect of goods found on the premises from which the rent arises. The lease may widen the scope of where distress may be levied.
Distrain must be made within six years after the rent becomes due. Distress for separate rents must be made separately.
Levying Distress
A landlord may levy distress in person or by an authorized agent. The landlord warrants his authority to distrain and impliedly undertakes to indemnify him.
The landlord may enter the premises but may not break in. Entry by force is a breach of the statutes on forcible entry.
An unfastened outer door may be opened. Even if closed, the key left in the lock may be turned. The outer door must not be broken open
Entry through an open window may be effective at common law where a person peacefully entered for the purpose of distress and was forcibly removed.
The seizure of goods may be actual or symbolic/constructive. It may involve entering the premises taking hold of the article, declaring that it is taken as distress. There may be a physical or constructive seizure.
Once goods have been seized, they must be secured in safe custody until the relevant money to which they refer have been paid.
In the cases where a statute allows the power of sale, they may be sold. The reclaiming of the goods by the tenant is referred to as replevin. Goods that are impounded must be released when a tender is made for rent and cost.
Impounding
Goods may be impounded on the property concerned or removed to a pound off the premises. They may be removed to a public pound. Most public pounds have long since ceased to exist.
Certain types of goods may only be impounded on the premises, including particularly agricultural products. Where goods are impounded on the premises, the landlord should not deprive the tenant of the entire premises. They should, for example, be put into a particular place or room, which should be secured.
It is not necessary to physically imprison good. For example, cattle may be impounded in an open field.
When goods are impounded off the premises, they must be put in a suitable pound. A public pound is a pound overt. Goods that may be damaged should be impounded in an indoor and suitable location.
The person distraining is responsible for the conditions of the pound and is responsible for taking care of the goods. He may be liable for loss and damage to the goods if he fails to comply with his obligations.
The landlord may not use or work the goods in question. Where use is necessary for maintenance, such as looking after cattle such use may be made. The landlord may allow the tenant to use the goods while they’re impounded.
Where goods are handed in the premises, they are under custody of the law. The landlord may abandon possession in which event they revert to the tenant.
Abandonment is a question of fact.
Other Enforcement
After commencement of bankruptcy, no distress shall be levied on the goods of a bankrupt or an arranging debtor. This applies after the date of the adjudication or order for protection. Equally, in the case of a company distress put into effect after the commencement of winding up is void.
Goods that have been seized by the sheriff may not be seized by the landlord, provided the execution is bona fide. The sheriff may not remove goods without paying one year’s rent.
In general, goods seized by the sheriff under a writ cannot be removed until arrears or rent up to one year have been paid by the execution creditor.
When execution has been levied and the tenant becomes bankrupt, the execution creditor is not liable to pay more than six months arrears unless notice of claim for rent has been served on the sheriff before the commencement of bankruptcy. A landlord may not claim rent in relation to periods after the date of the notice unless it is served before commencement.
The sheriff is not obliged to enquire whether a rent is in arrears. He is not liable to the landlord for keeping the goods unless informed that rent is due. Where he has notice before goods are removed that the rent is due, the sheriff becomes liable if sells the goods without paying the requisite rent to the landlords. In this case it is sufficient the sheriff has knowledge of the claim for rent.
Under the Act where notice has been given to the sheriff that rent is due the sheriff would call on the execution creditor to pay it and to not sell the goods until paid. The sheriff may refuse to sell. If the sheriff sells in breach of the obligation he is liable to the landlord by civil action. He does not require the goods to be sold by the sheriff.
Sale
Goods that have not been replevied within 5 days after distress and notice may be sold for the best price towards satisfaction of the rent under the Distress for Rent Act 1689. There is no obligation to sell. The tenant is entitled to the surplus if any.
If there is no regularity in sale the landlord may be liable for the value of any surplus that should have arisen but for the default.
The sale may take place where the goods are impounded. The best price must be obtained. No restriction may be imposed which restricts the best price. Goods are generally sold by auction, although there is no statutory requirement for an auction.
A landlord who purports to purchase does not obtain valid title and may be sued for conversion. The expenses of distress are the subject of statutory rules.
Distress must not be used in an oppressive manner.
If they have been sold to a third party who is a bona fide a purchaser without full valuable consideration without notice of the fraud, they take free from this right under the Distress for Rent Act 1741.
Wrongful Distress
Where goods have been fraudulently or clandestinely removed from the premises, the landlord or persons employed by him may within 30 days after removal seize the goods wherever they may be found and sell them as if distrained on the premises.
If, however, goods are removed from a pound or rescued, the landlord’s remedies are pound breach or rescue; each is an offence at common law. Goods distrained are regarded as being subject to a process of law. Taking goods out of the custody of the distrainer is a rescue. This may not occur until the actual distress takes place.
Pound breach is retaking custody of goods that have been impounded. It does not matter if goods are impounded on or off the premises. They may not be removed without the will of the distrainer without a pound breach having been committed.
Rescue applies before impounding of the goods. Rescue might be justified in limited cases where the distress amounts to be unlawful. Pound breach is an offence and cannot be justified.
Where there has been a rescue or pound breach, the remedy is the recaption action. Recaption allows the goods to be pursued and taken wherever they may happen to be. A breach of the peace must not be committed.
The landlord has a common law right of action in respect of rescue and pound breach. The landlord has a right to rescue and pound breach whether or not the goods were impounded on or off the premises. Pound breach was an indictable misdemeanour at common law.
Unlawful Distress
An illegal distress is one that is unlawful from the outset. The person distraining is a trespasser, even if goods are seized and sold to satisfy the rent. Distress may be illegal if the landlord does not fulfil the technical qualifications for the remedy as mentioned. This may occur for example where
- where there is a valid tender
- where it is off the premises
- whereas it is at night
- where it is a second distress for the same rent
- where there has been a forcible entry
- distraining things which are privileged, selling goods not distrained or not included in the inventory.
The remedies for illegal distress are action for damages, rescue or replevin.
Distress may be irregular, notwithstanding that it is legal. This may arise where the subsequent proceedings are unlawfully conducted. In some cases, replevin is required.
In other cases, notice must be given together with a copy of the inventory. The sale must be at the best price. If the distress is irregular but not illegal, the distraining party is not a trespasser from the outset. A purchaser of goods where the process is irregular as opposed to illegal obtains goods title.
Excessive distress may arise where more goods than necessary are seized. Only those reasonably necessary to satisfy the rent etc., in arrears plus cost should be seized. The person distraining must exercise a reasonable amount of discretion in estimating the value of the goods. The tenant may have a right of action if the distress is excessive.
Replevin
Replevin is a reclamation of the goods or re-delivery of goods that have been wrongfully distrained on giving sufficient security for the rent and an undertaking that he will pursue an action to determine the right of distrain. Replevin does not apply where the distress was lawful. Where it is illegal and not merely irregular, replevin is available.
The person exercising the right of replevin must give security and take action. It is a condition of security that action will be commenced in the appropriate court.
An action for damages may arise where there has been wrongful distress whether illegal, excessive or irregular. It may be taken against a landlord or directly against agents or bailiffs.
There is a special statutory remedy whereby if unlawful distress has taken place the owner of the goods may recover double the value of the goods and full cost.
An injunction may be obtained to destrain unlawful distress in appropriate circumstances.