Distraint

Distraint

Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent or other money owed", especially in common law countries.[1] 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."[2] 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. Today, some kind of court action is usually required,[3] the main exception being certain tax authorities, such as HM Revenue and Customs in the United Kingdom and, in the United States, the Internal Revenue Service -- agencies that retain the legal power to levy assets (by either seizure or distraint) without a court order.[4]

Contents

History

Article 61 of the Magna Carta extended the law of distraint to the monarch's properties. In England in 1267 the Statute of Marlborough was passed making distraint illegal without a court order.[citation needed]

Procedure

The goods are held for a given amount of time, and if the rent is not paid, they may be sold.[citation needed] 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 or sheriff officer in the United Kingdom or a sheriff or marshal 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.

Forced entry is usually not permitted by the distraint officer, however in the UK, in the event of entry being refused to the HMRC distraint officer, HM Revenue and Customs can apply for a break open warrant under Section 61(2) of the Taxes Management Act, 1970. This would permit forced entry to the debtors premises by the HMRC distraint officer. Any additional costs incurred from obtaining the warrant are passed onto the debtor and added to the debt to be collected by distraint.

Reform in the United Kingdom

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, the right to respect for private life.[5] The Lord Chancellor's Department (now the Ministry of Justice) in May 2001 issued the consultation paper Enforcement Review Consultation Paper No. 5: Distress for Rent, 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.

Distraint will be abolished in the UK when the Tribunals, Courts and Enforcement Act 2007, s.71 comes into force, replacing the remedy, solely for leases on commercial property, by a statutory system of Commercial Rent Arrears Recovery (CRAR).[6][7]

Distraint in the United States

Distraint was adopted into the United States common law from England, and it has recently been challenged as a possible violation of due process rights under the Fourteenth Amendment.[8] In decisions like Luria Bros. and Co. v. Allen, 672 F.2d 347 (3d Cir. 1982), however, the courts have upheld the rule because, as a landlord's self-help remedy, distraint involves no state action and thus cannot violate due process rights.[9] In the case of distraint by the federal government for collection of taxes, the power of administrative levy by distraint (distress) dates back to the year 1791, according to the U.S. Supreme Court.[10]

See also

Notes

  1. ^ "Distraint", Compact Oxford English Dictionary
  2. ^ Steven H. Gifis, Barron's Law Dictionary, p. 139 (2d ed. 1984).
  3. ^ "Distress", Britannica CD 2000
  4. ^ See United States v. Rodgers, 461 U.S. 677, 103 S. Ct. 2132, 83-1 U.S. Tax Cas. (CCH) paragr. 9374 (1983) (dicta) and Brian v. Gugin, 853 F. Supp. 358, 94-1 U.S. Tax Cas. (CCH) paragr. 50,278 (D. Idaho 1994), aff’d, 95-1 U.S. Tax Cas. (CCH) paragr. 50,067 (9th Cir. 1995).
  5. ^ Fuller v Happy Shopper Markets Ltd [2001] All ER
  6. ^ Tribunals, Courts and Enforcement Act 2007, ss.72-87/ Sch.14
  7. ^ "Explanatory Notes to Tribunals, Courts And Enforcement Act 2007". Office of Public Service Information. 2007. http://www.england-legislation.hmso.gov.uk/acts/acts2007/en/07en15-e.htm. Retrieved 2008-03-05. "paras.317-405" 
  8. ^ Korngold, G. Can Distraint Stand Up as a Landlord's Remedy? 5 Real Est. L.J. 242 (1977)
  9. ^ Casner, A.J. et al., Cases and Text on Property, Fifth Edition. Aspen Publishers, New York: NY, p. 526
  10. ^ Act of March 3, 1791, Ch. 15, § 23, 1 Stat. 199, 204, as cited in Phillips v. Commissioner, 283 U.S. 589, 595, n. 5 (1931), at [1], providing for "levy by distress and sale."

Wikimedia Foundation. 2010.

Look at other dictionaries:

  • distraint — dis·traint /di strānt/ n: the act or action of distraining Merriam Webster’s Dictionary of Law. Merriam Webster. 1996. distraint I …   Law dictionary

  • Distraint — Dis*traint , n. [OF. destrainte distress, force.] (Law) The act or proceeding of seizing personal property by distress. Abbott. [1913 Webster] || …   The Collaborative International Dictionary of English

  • distraint — The right that a landlord has to seize the property of a tenant on the premises being rented and sell that property for payment of rent arrears. (Dictionary of Canadian Bankruptcy Terms) United Glossary of Bankruptcy Terms 2012 …   Glossary of Bankruptcy

  • distraint — [di strānt′] n. [ME distreint < OFr destreinte] Law the action of distraining; seizure …   English World dictionary

  • distraint — distrain dis‧train [dɪˈstreɪn] verb [transitive] LAW to take goods from someone to be sold in order to pay rent that is owed: • Legislation has largely restricted the right to distrain goods found upon the premises but not belonging to the tenant …   Financial and business terms

  • distraint — noun Etymology: distrain + t (as in constraint) Date: circa 1736 the act or action of distraining …   New Collegiate Dictionary

  • distraint — /di straynt /, n. Law. the act of distraining; a distress. [1720 30; DISTRAIN + t, modeled on CONSTRAINT, RESTRAINT] * * * …   Universalium

  • distraint — noun The legal right of a landlord to seize the property of a tenant in the event of nonpayment of rent See Also: distrain, distrainable …   Wiktionary

  • distraint — dis·traint || dɪ streɪnt n. act of taking property in payment for debts …   English contemporary dictionary

  • distraint — [dɪ streɪnt] noun Law the seizure of someone s property in order to obtain payment of rent or other money owed …   English new terms dictionary


Share the article and excerpts

Direct link
Do a right-click on the link above
and select “Copy Link”

We are using cookies for the best presentation of our site. Continuing to use this site, you agree with this.