In the 1957 edition of FOA's General Law of Landlord and Tenant, the authors wrote that:
"Distress is a remedy given by the common law ....
"If rent ... be in arrear, the person legally entitled to it may distrain for it. That is to say, he may, without legal process and without even a previous demand, seize upon goods or cattle, whether the property of the tenant or not (subject to any privilege that may be claimed for them) - which he may find on the premises and after selling them, satisfy his claim for rent out of the proceeds."
Both distress and distraint are rarely used in modern times, especially in residential tenancy situations, have been displaced by statutes which provide less harsh remedies for the non-payment of rentprompting Lord Denning to reflect, in Abingdon, that: "it is very rarely that we have a case about distress for rent. It is an archaic remedy which has largely fallen into disuse."
In 859587 Ontario Ltd. Justice Dambrot wrote:
"Distress for arrears of rent is a summary remedy allowed to a landlord by the common law while the possession of the rented premises by the tenant continues. It permits the landlord to hold the goods of the tenant until the rent is paid.
"The right to sell the goods and apply the proceeds to the payment of rent is not part of the common law remedy of distress, and arises only under statute."
But note that in Peterson, Justice Maclean adopted these words:
"No precise act or form of words is essential to a distress, and the distress may be made without actual seizure. No particular form or precise terms are absolutely necessary to make a distress; any distinct expression of intention on the part of the person distraining being sufficient."
REFERENCES:
- 859587 Ontario Ltd. v Starmark Property Management Ltd. 10 Real Property Reports (RPR) 3d 238
- Abingdon Rural District Council v O'Gorman 1968 3 All ER 79
- Duhaime, Lloyd, Legal Definition of Distraint
- Duhaime, Lloyd, Residential Tenancy - A Glossary
- Heathcote-Williams, H., and others, FOA's General Law of Landlord and Tenant (London: Thames Bank Publishing Company, 1957), page 480.
- Peterson v. Johnston 17 WLR 596 (Sask., 1911)