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LAW COMMSSION

LANDLORD AND TENANT

INTERIM REPORT ON DISTRESS FOR RENT

Laid before Parliament by the Lord High Chancellor pursuant to section 3 (2) of the Law Commissions Act 1965

The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are-

The Honourable Mr. Justice Scarman, O.B.E., Chairman.

Mr. L. C. B. Gower. M.B.E.

Mr. Neil Lawson, Q.C.

Mr. N. S. Marsh.

Mr. Andrew Martin, Q.C.

Mr. Arthur Stapleton Cotton is a special consultant to the Commission.

The Secretary of the Commission is Mr. H. Boggis-Rolfe, C.B.E., and its

offices are at Lacon House, Theobald's Road, London, W.C.l.

TABLE OF CONTENTS

A	Introduction
B	Historical Origins
	Common Law
	Developments in the Law
C	Present Law
	Legal Nature of the remedy
	Levying a distress
	Goods Privileged from distress
D	Consultation
E	Analysis of the Replies
	Use of Distress
	Wrongful Distress
	Abuse of Distress and Hardship
	Effectiveness of Distress
	State of Opinion Indicated by Replies
F	Conclusions
G	Recommendations
Appendix A	Questionnaire on Distress for Rent
Appendix B	Government and Public Departments and Other Bodies, etc., who received the Questionnaire
Appendix C	Statistics-County Courts
Appendix D	Statistics-Property Owning Companies, Housing Authorities, etc

LAW COMMISSION

LANDLORS AND TENANT INTERIM REPORT ON DISTRESS FOR RENT

To the Right Honourable The Lord Gardiner, the Lord High Chancellor of Great Britain

My Lord,

A. INTRODUCTION

1. The Law Commission, under Item VIII of its First Programme, recommended that an examination be made of the law of distress for rent as one of the steps towards ultimate codification of the basic law of landlord and tenant. The law has become unduly complex, developing as it has over seven centuries, and is today based on scores of statutes and a mass of cases. A complete restatement of the law is necessary in order to achieve clarity and to eliminate anachronisms. Furthermore the justification for retaining this self-help remedy under present-day social conditions has been called into question.
2. The Commission therefore directed a study of the law of distress with the object of considering whether the remedy should be (a) abolished (b) retained with modifications and (c) if retained, whether the law should be consolidated and, later, codified. The study was not to include distress for rates, taxes, rent charges, annuities or damage feasant.

B. HISTORICAL ORIGINS

Common Law

3. Distress in general is a taking without legal process of goods or cattle as a pledge to compel the satisfaction of a demand or the performance of a duty, though the term is commonly used to connote both the actual process of taking and the goods. The origin of distress is to be found in the nature of feudal society. The tenant of a demesne was bound by the ties of fealty to render to his lord many different kinds of services, and to pay to him various kinds of dues. If the tenant failed to render any of these services or to pay any of these dues his land became forfeit to the lord, who then became entitled to retake it and to hold it as a pledge to compel the tenant to fulfil his obligations to him. This summary method of self-help was found not only to work grave injustice but to render abortive the very object it sought to advance, namely the performance of the tenant's obligations : for by the very seizure of his lands, the tenant was deprived of the only means of performing his services or paying his dues. Accordingly, the practice arose of distraining by taking the chattels upon the land instead of the land itself. But upon the exercise of the latter method of distraint, a restriction existed in very early times, in that the lord could not distrain without leave of the court (Statute of Marlborough 1267 52 Hen. 3 c.l), (See Holdsworth, History of English Law Vol. I1 p. 100, and Pollock and Maitland Vol. I1 p. 576). There is evidence that lords used to obtain a judgment before seizing their tenant's goods. In other words, the process of distraining a tenant by his chattels was in very early times in reality a form of execution. The court, whose order or judgment was necessary for a distraint to be levied could, however, be, and frequently was the lord's own court. In these circumstances it is not strange to find that lords regarded the sanction of their court as a mere formality which was ultimately dis- pensed with. From the Thirteenth Century onwards the power of distress came to be used freely, and what is of importance extra-judicially. In this early period, distress was not so much a remedy as the means of obtaining one, for the chattels distrained remained only as a pledge and could not be sold. At common law, whatever was found on the demised premises, whether belonging to a stranger or not, might be seized by the landlord until the rent was paid or the service performed. But if he attempted to sell them he became liable in an action to the owner.

In course of time the various services due by the tenant became commuted for money and payment of rent became the only service normally owed.

Developments in the Law

4. Power to sell the distress was granted by the Distress for Rent Act 1689, subject to the distrainer leaving at "the chief mansion house, or other notorious place on the premises charged with the rent distrained for", a notice of the distress.

The current of legislation was for a very long time wholly for the benefit of landlords (see for example the provisions for Distress for Rent Act 1737, Sale of Farming Stock Act 1816 and the Distress (Costs) Acts 1817 and 1827). The Nineteenth Century, however, saw passed a series of Acts to protect some classes of goods both of the tenant and of third parties ; the Lodgers' Goods Protection Act 1871 (whose provisions were incorporated in the Law of Distress Amendment Act 1908) and the Law of Distress Amendment Acts 1888 and 1895. The Real Property Limitation Act 1833 limited the number of years' rent that could be distrained for. The Rent Acts of the Twentieth Century have since taken away the right to distrain in the case of dwelling-houses subject thereto, except with the leave of the court.

C. PRESENTLAW

Legal Nature of the remedy

5. As previously pointed out distress is a relic of feudalism. It survived the reforming legislation of 1925 and still remains with us despite its feudal .origins and the fact that it is an extra-judicial self-help remedy. It appears .an obvious anachronism. Its present legal basis is that, where there is a relationship of landlord and tenant and rent is payable by the tenant, the landlord has a right to enforce payment by distress because this is an incident of the rent service which the tenant owes to the landlord.

Levying a distress

6. A distress for rent may be levied either by the landlord in person (this is rare) or by a certificated bailiff on his behalf (this is the common method). It is usual, though not necessary, for the bails to be provided with a proper warrant to distrain. Distress can only be levied after sunrise and before sunset, and must in general be levied upon goods found on some part of the demised land or premises. The right to levy a distress involves the right to enter, but not to break into the demised premises. Seizure of goods may be actual or constructive, and they may be impounded either on or off the premises. Where the goods remain on the premises, it is advisable, where the landlord does not wish to leave a man in close possession of the goods, to obtain the tenant's consent (Walking Possession Agreement), for a second distress cannot generally be made where the first has been abandoned.

Goods privileged from distress

7. As a general rule the landlord is entitled to levy distress upon all goods found upon the demised premises; but there are exceptions in the case of goods of the Crown or ambassadors or authorised ministers of any foreign Prince or State. Goods already in the custody of the law are excepted from distress for rent although in the case of goods taken in execution a landlord's priority for arrears of rent is preserved by the Landlord and Tenant Act 1709 and by the County Courts Act 1959 section 137. Things in which there can be no valuable property cannot be distrained upon, e.g. animals ferae naturae, nor can things of a perishable nature, money, things actually in present use, fixtures and things annexed to the freehold, things which cannot be restored to the same condition as before the distress, things delivered to a person exercising a trade to be carried, wrought or manufactured in the way of his trade, and goods and cattle in a public fair or market. Clothes, bedding and trade implements up to the value of £20 are now protected, by section 4 of the Law of Distress Amendment Act 1888 and section 124 of the County Courts Act 1959, and agricultural machinery and agisted cattle under section 20 of the Agricultural Holdings Act 1948. The Rail- way Rolling Stock Protection Act 1872, the Water Act 1945, the Electricity Act 1947 and the Gas Act 1948 exempt the relevant statutory undertaker's rolling stock and fittings against distress for rent. By and subject to the conditions of section 1 of the Law of Distress (Amendment) Act 1908 goods of third parties upon the tenant's premises are now as a general rule protected against distress. This protection does not, however, extend to goods comprised in a hire-purchase agreement or goods which with the owners consent are in the tenant's possession under such circumstances that he is the reputed owner. Various attempts made in the last fifty years by finance companies in the hire-purchase business to protect their goods against distress by employing special contractual terms and other techniques have, on the whole, been fairly successful. Further, where goods are within the financial limits of the Hire Purchase Act 1965, once a hire-purchase or credit sale agreement has been terminated or notice of default served, the owners (normally finance companies) receive a very substantial measure of protection against distress for rent under section 53 of that Act.,

D. CONSULTATION

8. It was decided to asses the practical importance of the remedy today by consulting those Government Departments which have proprietary interests, housing authorities, professional bodies, and organizations representing land- lords on the one hand and tenants on the other ; and to seek their reactions on alternative proposals to abolish the remedy or to retain it in its present or a modified form. This was done by means of a questionnaire, first submitted for the comments of certain Government Departments represented at a preliminary meeting on 25th August, 1965, and subsequently circulated as widely as possible.
9. The questionnaire (Appendix A) was accordingly sent on 22nd September to 12 Government and Public Departments, and the other bodies or organisations shown in Appendix B. Many recipients required copies of the questionnaire for circulation amongst their members, and, in all, over 600 have been sent out. Replies have been received from all but one of the Government Departments, and from 46 of the other recipients as well as from some firms of Solicitors to whose attention the questionnaire was drawn by the law Society. Five bodies were unable to give any information to the Commission. Detailed replies, however, have been received from organizations with similar experience, and therefore failure to reply on the part of those five bodies is not thought to have affected the result of the enquiry materially.
10. On 19th January the Commission's representatives met members of the Certificated Bailiffs' Association who gave a clear picture of the extent to which the remedy of distress is used in different parts of the country today. They emphasised the need to establish the professional status of the bailiff; and they pointed out that once leave of the court is required to distrain, one of the major advantages of the remedy, namely speed, is lost.

E. ANALYSIS OF THE REPLIES

Use of Distress

11. Even in the absence of accurate and detailed statistics it is evident that the incidence of distress is very low in proportion to numbers of lettings. This can be demonstrated by typical illustrations : -

(a) Six large property owning companies state that, over the last 10 years, the instances of distress for rent have varied between -005 per cent. and 1 per cent. annually of their total lettings.

(b) County Borough M with total lettings of 44,196, levied distress in 93 cases during the years 1964-65 (in this period tenants were in arrear in 6,860 instances). County Borough N with total lettings of 47,547, levied distress in 169 cases in the year 1964 (arrear cases 1,378).

(c) Rural District Council X with 2,070 tenancies issued 16 distress warrants in one year; Y with 1,000 tenancies issued 100 distress warrants against 37 different tenants in one year; 2 with 2,654 tenancies issued 28 distress warrants in one year.

(d) Agricultural landlords (represented by 320 members of the County Landowners Association) reported only 30 cases of distress for rent in the last 20 years. The National Farmers Union state that they cannot recall in recent years being concerned with any case of distress for rent on agricultural holdings.

(e) Municipal Corporation W with 2,032 tenancies issued 178 distress warrants in the year 1964-65.

Further, it is clear from the replies to the questionnaire that the majority of landlords, public and private, do not use the remedy of distress for rent at all. Examples are : -

(f) A Housing Association controlling some 8,500 dwellings has not resorted to distress for the last 30 years and we understand that this represents the invariable practice of Housing Associations.

(g) A sample of 18 Borough Councils produced the answer from 10 that they did not use the remedy of distress ; and from 1 that it was seldom used. The details concerning the remaining 7 are included in Appendix D.

(h) Of 5 "New Town" authorities from whom information was obtained, 3 have not used the remedy of distress ; the others use it but rarely.

(i) Of the Ministries and Public Authorities (excluding local authorities) consulted, few use it and those but seldom.

The value of these illustrations is increased by the fact that, except in example (a), the landlords concerned would be free to distrain without leave of the court.

12. Undoubtedly the fact that private landlords, in the case of lettings subject to the Rent Acts, require the leave of the court to distrain for rent has had an inhibiting effect upon their use of the remedy. The statistical information provided by the County Courts Branch of the Lord Chancellor's Department (see Appendix C) shows that, compared with the estimated total numbers of private tenancies subject to this requirement, the number of applications for leave was minimal. It is also important to observe that latterly only about 60 per cent. of such applications resulted in orders, but no information is obtainable of the grounds upon which leave was refused for the balance of such applications.
13. The information furnished upon the use of distress for arrears of rent in business lettings (offices, shops and factories) is not markedly different from that provided relating to dwelling house and agricultural lettings. It is appreciated, however, that in the former case other considerations tend to reduce the use of the remedy.

Wrongful Distress

14. There is no evidence that wrongful distress is at all widespread by, for example, being levied upon exempted goods because they fall under hire- purchase agreements which have been effectively terminated, or belong to third parties or because they belong to the protected classes. On the other hand, it is clear that the person distraining has to exercise extreme caution in respect of all goods on the tenant's premises particularly those likely to have been acquired on deferred terms. The Hire Purchase Trade Association submitted a memorandum on section 4 of the Law of Distress Amendment Act 1908, proposing certain amendments, the effect of which would be to remove from liability to distress goods held under hire-purchase agreements or in reputed ownership. In view of section 53 of the Hire Purchase Act 1965, however it is not considered that any change in the law should be made to meet this proposal.

Abuse of Distress and Hardship

15. There is little indication either that the threat of distraint is abused, or that abuses occur in the course of distress, or that unjustifiable hardship is caused by distress. Nevertheless, some warning notes were sounded ; and in particular, cases cited by the National Citizens' Advice Bureaux Council are significant. Another reply pointed to the emotional upset caused to tenants' families by the law of distress, and another to the fact that on account of the disproportionately low second-hand value of goods today, a family could lose all its possessions in satisfying a minimal debt. Clearly the second- hand value of such things as washing machines, cookers, radio and T.V. sets (favoured object of distress) bears no relation to their cost when new. Although tenants do not lose their homes by distress yet the loss of their furniture and domestic equipment makes it likely that these will be replaced and that this will lead to heavy new hire-purchase liabilities, thus conducing to further arrears of rent. The answer might be that the tenant would do better to give up his tenancy and h d one at a rent within his means. But it must be appreciated that rent arrears are just as likely to arise from unemployment, sickness or matrimonial disturbances, as from careless mismanagement. In cases of misfortune it is undoubtedly the practice of most landlords, if they know tenants to be in such difficulties, to stay their hand, but too often tenants make no attempt to explain their problems and it is only on the bailiff's arrival that they come to light. From the information provided it appears that bailiffs generally do what they can to avoid loss under distress, where there is a genuine case of misfortune or hardship. On the other hand it can be said that distress is less disastrous to the tenant than eviction, and certainly less expensive than a judgment for arrears. The timeous use of distress in appropriate cases may save the tenant from accumulating further arrears of rent thus adding to his difficulties.

Electiveness of Distress

16. The replies to the questionnaires demonstrate quite clearly that the threat of a levy of distress is, in the overwhelming majority of cases, sufficient to produce payment of arrears and rent, (see Appendix D). Where, in the very small minority of cases, levy of distress is pursued to its conclusion, the indications are that the result is frequently unsatisfactory, either because there are insufficient saleable goods or because the sale proceeds do not satisfy the debt and the costs of distress and auction. It does not appear that the common law and statutory exceptions protecting certain categories of goods from distress have any material effect upon the effectiveness of the threat of a distress warrant as a means of producing payment.

State of Opinion Indicated by Replies

17. Distress for rent has to a large extent fallen into disuse. Many laymen think that it has long ceased to exist and few lawyers have had much experience of the remedy in recent years. Some of our informants saw distress as an archaic and extra judicial remedy which should be abolished ; others admitting that self-help remedies are inconsistent with present day views as to the role of the courts, felt that distress should still be available but only by leave of the court. In the majority of private lettings of dwelling houses this position has now been reached as a result of the Rent Act 1965. But the main weight of opinion was that the remedy broadly in its present form, should be available without leave where at present required, because the interposition of the court delays and renders most costly the use of distress. Of those who favoured abolition of distress for rent, mainly representing professional not proprietary interests, the majority thought that this should be conditional on the provision of a substituted remedy of comparable simplicity and effectiveness in exercise.
18. It is clear that landlords are in a less favourable position than most other creditors. Once a landlord has taken a tenant he is compelled to give credit until he can recover possession, whilst a tradesman gives and can withhold credit upon his assessment of the customer's position. What the landlord wants, therefore, when he has to deal with a tenant in arrears, is a speedy effective remedy and certainly one that is going to satisfy him more quickly and at less cost than the action for recovery of arrears at present provides. This is recognised by the professional opinion referred to above. The effect of the provision of a substituted remedy is well illustrated by the results of section 24(2)(d) of the Agricultural Holdings Act 1948. Rather than proceeding to distrain for rent agricultural landlords almost invariably serve a two months' notice for payment of arrears and, if this is not complied with, serve a notice to quit, the operation of which is not then subject to the counter notice and consent provisions generally applicable to the termination of tenancies of agricultural holdings.
19. Where application to the court is a pre-condition to the levy of distress, the delay involved at the present time is of the order of two to three weeks. This delay is likely to produce further arrears of rent which may have, in due course, to be the subject of a fresh application. This delay is therefore one of the matters which makes private landlords dissatisfied with the present law.
20. Amongst proprietary interests consulted opinion favoured a change in the law to make arrears of rent a preferential claim in bankruptcy or insolvent liquidation. Given the continuance of the remedy of distress, it is not felt however that there would be any justification for such a change which would inevitably affect the rights of the present classes of preferential creditors.
21. So far as local authorities are concerned those that employ the remedy are anxious that they should be free to pursue it without the intervention of the court. But, as appears from the foregoing, those who do use it, do so to a limited extent and only when they are reasonably satisfied that the appearance of the bail8 will produce payment. Many such authorities accept an obligation and exercise a tolerance not only in hardship cases but also to bad tenants who otherwise might not find accommodation. Such authorities go to extreme lengths (by repeated warning notices, use of welfare offices etc.) not only to avoid eviction proceedings but even to avoid levying distress.
22. The general feeling emerges amongst landlords that the scales have been tipped too heavily in favour of tenants to the extent that landlords are practically powerless against bad tenants and most of the informants would prefer to see distress retained as a means by which they can exercise a degree of self-help. Nevertheless, the remedy of distress is clearly only desired for lack of something better, and there is no hint to suggest that distress could be justifiably retained if some other speedy and effective remedy more appropriate to our present day society could be devised.

F. CONCLUSIONS

23. The Law Commission approaches its recommendations upon distress for rent with the following conclusions in mind : -

A. Distress for rent is a remedy of which little use is made in practice ; but where it is invoked the first step, the issue of a warrant-or its equivalent-is more productive of results in obtaining payment of arrears than the pursuit of distress to the point of sale.

B. The archaic and extrajudicial character of the remedy makes it unattractive to contemporary society, although there is little evidence of abuse of the remedy or of substantial hardship occasioned by its exercise.

C. Arrears of rent, whether the result of bad management or of misfortune on the part of the tenant, are merely one aspect of the problem of overall individual indebtedness and their recovery is one aspect of the wider problem of satisfactory enforcement processes.

D. In the rare cases where the remedy is used, even when leave is required, the process is speedy and inexpensive compared with the present available remedies of an action for arrears or for possession.

E. The extended requirement of leave of the court for distress imposed by the Rent Act 1965 is likely further to restrict its use by private landlords.

F. There is no major criticism of the existing features of the remedy other than of the requirement of the court's leave, where this exists, by landlords and of the absence of such a requirement, where it does not exist, by tenants.

G. In the case of landlords of dwelling houses to whom Part I of the Rent Act 1965 does not apply (mainly local authorities), no reason has been given why they should receive more favourable treatment in respect of this use of the remedy than private landlords. Local authorities rentals are, to an increasing extent, determined by realistic standards. Further, in respect of recovery of possession, the policy appears to be to assimilate the local authorities' position to that of private landlords (see e.g. section 35 of the Rent Act 1965). Finally, it is desirable that self-help remedies should be brought under judicial control, as has, for example, occurred with the retaking of goods within the Hire Purchase Act 1965 let on hire-purchase terms. Contemplation of the possibility of a modernised and comprehensive debt enforcement machinery also supports the removal of the present differentiation of private and other landlords.

24. Although the extremely limited use of distress for rent by all kinds of landlords in all types of lettings, which our inquiries have revealed, does support a case for the immediate abolition of the remedy, yet in view of the state of opinion emerging the Law Commission regards it as preferable to take a broader view. The real demand is for a review of remedies for non- payment of rent and for the provision of an effective machinery for debt recovery from those members of the community whose practices or misfortunes lead them into a condition of chronic indebtedness towards their landlords and other creditors. The former, a review of remedies, is currently being examined under Item VIII of the Law Commission's First Programme (Codification of the law of landlord and tenant). The latter, enforcement procedures and machinery, is under consideration by the Payne Committee. Pending the completion of these examinations, it is therefore considered that distress for rent should not be abolished at the present time.
25. If the remedy of distress for rent is to retain its place in English law then there is a strong case for a codification in modem terms of the ancient and more recent statutes and of the principles laid down in the decided cases. In such a codification the archaisms and anomalies at present subsisting could be eliminated and adjustments made to bring the law into conformity with present day needs. Examination of this problem would, of necessity, com- prise a study of distress as a remedy in relation to other obligations (e.g. rates, taxes etc.), where distress is at present available. This extended study was excluded from the scope of the Law Commission's present examination of the law of distress.

G. RECOMMENDATIONS

26. The Law Commission therefore proposes : -

A. That pending the provision of more efficient remedies for non- payment of rent or a uniform debt enforcement system, the remedy of distress for rent should be retained as at present available except that its exercise in the case of all residential lettings should be subject to the leave of the County Court.

B. That while the remedy is retained, when an application for leave to distrain is granted by the court, the landlord should be entitled to distrain not only for arrears as at the date of his application but also for such further arrears as may have accrued between that date and the date of the order. This change would go far towards removing one of the main objections to the interposition of the court in the process of distress i.e. as causing delay during which further arrears are likely to accumulate. Once a landlord has embarked upon the process of recovery by distress, he should, if leave is granted, be entitled to proceed to recovery of the whole indebted- ness and not be obliged to begin fresh proceedings for arrears which have accrued in the meantime. It is not considered that this change would operate unfairly upon defaulting tenants.

C. That should it be decided to retain distress as a remedy for recovery of rent, the Law Commission should study and prepare proposals for a codification upon the lines and with the content indicated in paragraph 25 above, but that a decision upon this should await the results of the current examinations referred to in paragraph 24 above.

(Signed) LESLIE SCARMAN, Chairman.

L. C. B. GOWER.

NEIL LAWSON.

NORMAN S. MARSH.

ANDREW MARTIN.

HUME BOGGIS-ROLFE, Secretary.

1st August 1966.

APPENDIX A.

27th October, 1965.

QUESTIONNAlRE BY THE LAW COMMISSION

on

DISTRESS FOR RENT

A . General

1. What is the practical importance of this remedy at the present time in relation to:-

(a) residential lettings at rack rents by private landlords

(b) lettings by local authorities for residential purposes

(c) lettings by housing associations and societies for residential purposes

(d) long leases at ground rents:-

(i) building leases

(ii) other leases

(e) business lettings : -

(i) offices

(ii) shops

(iii) industrial premises

(iv) mining leases

( f ) agricultural tenancies

(g) any other types of tenancy not specifically covered above?

2. (a) In relation to distress for rent, have you any statistical information as to the numbers of distress warrants issued ; as to the payment of arrears after issue and before sale ; and as to the number of warrants executed on sale?

(b) If you can provide information under (a) above can you provide this information broken down under the headings given under question 1 above?

(c) If you can provide such statistical information under (a) and/or (b) above can you relate the information proportionately or otherwise to a total number of lettings?

3. Is there evidence to suggest that distraint is wrongfully levied upon goods because they:-

(a) fall under hire purchase agreements

(i) domestic

(ii) industrial

(b) hiring agreements

(i) domestic

(ii) industrial, which have been determined.

(c) are otherwise immune from distress by common law or statute?

4. What are your views upon the following suggestions:-

(a) that leave of the court should be required for the issue of distress warrants in all cases

(b) that such leave should be required in the case of all residential lettings with a ceiling of £400 per annum rateable value in London, and £200 per annum rateable value elsewhere

(c) that the remedy of distress for rent should be abolished in respect of all lettings

(d) that the remedy should be abolished only in respect of residential lettings?

5. What reasons are there for retaining the remedy of distress in the case of: -

(a) business lettings

(b) agricultural lettings

(c) any other special cases?

6. What is the importance if any of the remedy of distress for rent in the case of insolvency of individual or company tenants?

7. What are your views on a suggestion that the landlord should rank as a preferential creditor for say six months' rent in the insolvency of an individual or company tenant?

B. As affecting tenants

8. Is there evidence to suggest that:-

(a) the threat of the exercise of the power of distress for rent is abused

(b) any abuses occur in the execution of distress for rent?

9. Is there evidence that the exercise of the remedy of distress for rent causes unjustifiable hardship?

C. As affecting the landlord

10. How effective is the mere existence of the right to distrain h procuring payment of arrears of rent?

11. When a distress warrant has been issued (with the leave of the court where required) how effective is the remedy of distress : -

(a) before levy

(b) after levy but before sale

(c) in relation to the proceeds of sale

in procuring payment of arrears of rent?

12. How far in practice do the common law and statutory exceptions from distress render the remedy nugatory?

13. Is action for recovery of arrears of rent a less satisfactory remedy than distress for landlords and if so for what reasons?

D. Conclusion

14. Have you any suggestions for improvements in the present law with regard to recovery of arrears of rent by distress or otherwise?

LAW COMMISSION,

Theobald's Road,

London, W.C. 1.

Lacon House,

Any enquiries should be made to D. Lloyd Evans, HOL 8700, ext. 146.

APPENDIX B

GOVERNMENT AND PUBLIC DEPARTMENTS

1. Church Commissioners.

2. Crown Estate Commissioners.

3. Ministry of Agriculture and Fisheries.

4. Ministry of Housing and Local Government.

5. Ministry of Land and Natural Resources.

6. Treasury Solicitor's Office.

7. Ministry of Health (forwarding 15 replies from Regional Hospital Boards).

8. Board of Trade.

9. Duchy of Lancaster.

10. Atomic Energy Authority.

11. Ministry of Public Building and Works.

12. Ministry of Defence.

OTHER BODIES ETC.

1. General Council of the Bar.

2. The Law Society.

3. The Royal Institute of Chartered Surveyors, and

4. The Chartered Auctioneers' and Estate Agents' Institute, and

5. Chartered Land Agents' Society.

6. Institute of Chartered Accountants in England and Wales.

7. The Building Societies Association.

8. Incorporated Society of Auctioneers and Landed Property Agents.

9. National Association of Probation Officers.

10. National Farmers' Union.

11. Institute of Race Relations.

12. Cambridge House (Trinity Hall) Legal Advice Service.

13. Church Army.

14. Family Welfare Association.

15. London Council of Social Service.

16. Standing Conference of Organisations of Social Workers.

17. National Citizens' Advice Bureau.

18. The Mary Ward Centre.

19. Salvation Army.

20. University House Free Legal Advice Bureau.

21. W.V.S. Lambeth Centre Free Legal Advice Bureau.

22. National Federation of Property Owners.

23. Property Owners' Protection Association.

24. Association of Land and Property Owners.

25. National Federation of Housing Societies.

26. Association of Municipal Corporations, and 5 Development Corporations

and New Towns Commissions.

27. County Councils Association.

28. Urban District Councils Association.

29. Rural District Councils Association.

30. Association of Certified and Corporate Accountants.

31. County Landowners' Association.

32. Society of Labour Lawyers.

33. Inns of Court Conservative Association.

34. Bursar, Kings College, Cambridge.

35. Bursar, Gonville and Caius College, Cambridge.

36. Bursar, St. John's College, Cambridge.

37. Bursar, Trinity College, Cambridge.

38. Secretary, Bursars' Committee of Oxford Colleges.

39. Society of Liberal Lawyers.

40. Hire Purchase Trade Association.

41. Association of Certificated Bailiffs, Mr. Feldman.

42. Association of British Chambers of Commerce.

43. London Chamber of Commerce.

44. National Chamber of Trade.

45. Confederation of British Industries.

46. Bromley and Kent Law Society.

47. Gravesend and District Law Society.

48. Messrs. Martin, Son & Allen (Solicitors).

49. Mr. A. Rawlence (Solicitor).

50. Messrs. Triggs, Turner & Co. (Solicitors).

51. Institute of Housing Managers.

APPENDIX C

COUNTY COURT STATISTICS

1. COURTS (EMERGENCY POWERS) ACT 1943.

Applications under Section 1(2) for Leave to Distrain.

Year
1944	9,739
1945	8,882
1946	7,999
1947	8,921
1948	9,579
1949	9,304
1950	6,870

2. INCREASE OF RENT AND MORTGAGE INTEREST (RESTRICTIONS) ACTS.

Year	Applications	Orders
1951	-	-
1952	-	-
1953	5,494	3,917
1954	4,241	3,007
1955	3,495	2,425
1956	3,370	2,446
1957	2,630	1,916
1958	2,546	1,759
1959	1,988	1,307
1960	1,427	961
1961	1,167	768
1962	923	656
1963	755	517
1964	659	385

3. ESTIMATED NUMBER OF CONTROLLED TENANCIES IN ENGLAND AND WALES (RENT ACT 1920-1939).

Prior to Rent Act 1957-about 4.5 m.

Immediately after 1957 Act-about 4.1 m.

End of 1965-about 1.9 m. (a)

Note: (a) The number of controlled tenancies decreased by about 10 per cent per year from 1957 to 1965.

4. ESTIMATED NUMBER OF UNRJRNJSHED TENANCIES I[N PRIVATE SECTOR IN ENGLAND , AND WALES WITHIN THE RENT ACT, 1965.

End of 1965-about 2 - 6 m. (b)

Note: (b) This includes the appropriate figure under 3 above and the tenancies to which the Rent Acts were applied by the Rent Act 1965. In the case of these tenancies therefore the leave of the court is required to distrain for rent.

APPENDIX D

DISTRESS FOR RENT

Statistics furnished by 4 property owning companies

Company A
(i) Distress Warrants issued between January 1964 and June 1965 being 0.7 per cent. of total tenancies	16
(ii) Total sum recovered after issue and before sale	£l ,560
(iii) Warrants executed by sale	NIL
Company C
(i) Distress warrants issued during last 8 years being 3 per cent. of tenancies over 8 years	6
(ii) Settled after issue and before sale	5
(iii) Warrants executed by sale	1
Company E
(i) Distress warrants issued between 1st July 1964 and 301h February 1965-being 0-9 per cent. of tenancies	78
(ii) Settled after issue and before sale	71
(iii) Warrants executed by sale	7
Company F
(i) Certificated Bailiff instructed in rent cases being 0.5 per cent. of tenancies	9
(ii) Full arrears paid following levy	5
(iii) 50 per cent. arrears paid following levy: balance cleared over 2 months	1
(iv) Bailiff withdrew after payment of 5 per cent. on return of goods	1
(v) At tenant's request goods sold by auction: proceeds of sale accepted in full settlement in return for vacant possession	1



ISBN: 0105202681

1st January 1966

Crown Copyright 1966

S.O. Code No. 39-90