THE LAW
COMMISSION
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
LONDON
HER MAJESTY’S STATIONERY OFFICE
TWO S H I L L I N G S NET
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 Commis-
sioners 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.
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TABLE OF CONTENTS
Page
A. Introduction ... ... ... ... ... ... ... ... 5
B. Historical Origins ... ... ... ... ... ... ... 5
CommonLaw ... ... ... ... ... ... ... 5
Developments in the Law ... ... ... ... ... 6
C. Present Law ... ... ... ... ... ... ... ... 6
Legal Nature of the remedy ... ... ... ... ... 6
Levying a distress ... ... ... ... ... ... ... 7
Goods Privileged from distress ... ... ... ... ... 7
D. Consultation ... ... ... ... ... ... ... ... 8
E. Analysis of the Replies ... ... ... ... ... ... ... 8
Use of Distress ... ... ... ... ... ... ... 8
Wrongful Distress ... ... ... ... ... ... ... 10
Abuse of Distress and Hardship ... ... ... ... ... 10
Effectiveness of Distress ... ... ... ... ... ... 11
State of Opinion Indicated by Replies ... ... ... ... 11
F. Conclusions ... ... ... ... ... ... ... ... 12
G. Recommendations ... ... ... ...
... ... ... 13
Appendix A: Questionnaire on Distress for Rent ... ... 15
Appendix B : Government and Public Departments and Other
Bodies, etc., who received the Questionnaire 17
Appendix C : Statistics-County Courts ... ... ... 18
Appendix D : Statistics-Property Owning Companies, Hous-
ing Authorities, etc. ... ... ... ... 19
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LAW COMMISSION
LANDLORD AND TENANT
INTERIM REPORT ON DISTRESS FOR RENT
T o the Right Honourable The Lord Gardiner,
the Lord High Chancellor of Great Britain
My Lord,
A. INTRODUCTION
1. The Law Commission, under Item VI11 of its First Programme, recom-
mended 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
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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 “ t h e 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 Ninenteenth 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 I
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. I t 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.
6
Levying a distress
6. A distress for rent may be levied either by the landlord in person (this is
rare) or by a certificated bailif€ on his behalf (this is the common method).
It is usual, though not necessary, for the b a i l s 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, ktures 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 camed, wrought or manufac-
tured 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 E20 are now pro-
tected, 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 pro-
tection against distress for rent under section 53 of that Act.,
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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 sub-
mitted 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 Septem-
ber 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 TWE 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.
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I
(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 authori-
ties) 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-
9
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 mis-
management. 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 b a i l a 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 accumu-
lating further arrears of rent thus adding to his difficulties.
Eflectiveness 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
10
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 pment 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 bankuptcy 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.
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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 authori-
ties 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 appro-
priate 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 mis-
fortune 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
12
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 possibjlity of a modernised and com-
prehensive 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 mis-
fortunes 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 VI11 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
13
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.
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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
t0:-
(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
(6)long leases at ground rents:-
(i) building leases
(ii) other leases
(e) business lettings :-
(i) offices
(ii) shops
(5) industrial premises
(iv) mining leases
( f ) agricultural tenancies
(g) any other types of tenancy not specifically covered above?
2. (U) 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) I€ 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) a n d / o r (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:-
(U) 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?
15
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 E400 per annum rateable value in London, and E200
per annum rateable value elsewhere
(c) that the remedy of distress for rent should be abolished in respect of
all lettings
(6) 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,
Lacon House,
Theobald's Road,
London, W.C. 1.
Any enquiries should be made to D. Lloyd Evans, HOL 8700, ext. 146.
16
APPENDIX B
GOVERNMENT A N D 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.
17
30. Association of Certiiied and Corporate Accountants.
31. County Landowners’ Association.
32. Society of Labour Lawyers.
33. Inns of Court ConservativeAssociation.
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)Am 1943.
Applications under Section l(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 (RESTRICTIONS)
INTEREST 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
18
3. ESTIMATED NUMBER OF CONTROLLED TENANCIES IN ENGLAND A N D 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 . . . . . . . . . El ,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 0-9per 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) Bailiffwithdrew 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
19
Statistics furnished by housing authorities
Authority Distress warrants Payment after issue Warrants
issued before sale executed
A. 250 (1965) ... ... . . . . . . 209 17
B. 499 (1957) ... ......
323 (1958) . . . . . .
303 (1959) . . . . . . . . .
192 (1960) ... ......... Annual
73 (1961) . . . . . . . . . . . . Approx. 92 per cent. average
18 (1962) . . . . . . . . . . . . 2 per cent.
25 (1963) ... ... . . . . . .
4 (1964) ... ... ... ...
0 (1965) ... ......
c. 93 (1964 and i g i i j ...... c -
D. 200 (since May 1963) ... - -
E. 281 (year ended 30.11.65)”’ ... 277 4
F. 200 average per month . . . . . . Approx. 75 per cent. -
G. 17 (year ended 31.3.65) (business
tenancies) . . . . . . . . . 90 per cent. 2
H. 178 ... ... . . . . . . . . . 130 48
Statistics furnished by the Association of Certificated Bailiffs
Surrey Members Per cent.
Average of 2,000 warrants issued per annum
(i) Payment after levy and before sale . . . . . . ......... 95
(ii) Warrants executed . . . . . . . . . . . . ...... ... 5
Hertfordshire Member
Average of 800 warrants issued per annum
(i) Payment after levy and before sale . . . . . . ... ...... 90
(ii) Warrants executed . . . . . . . . . .. ....... ... 10
Greater London and Sussex
Average of 1,000 warrants issued per year
(i) Payment after levy and before sale . . . . . . . . . ...... 94
(U) Warrants executed ............ ......... 6
Midlands Member
Average of 900 warrants issued per annum
(i) Payment after levy and before sale . . . . . . . . . . . . ... 97
(ii) Warrants executed . . . . . . . . . . . . . . . . . . . . . 3
Statistics furnished by the Institute of Housing Managers
Authority Total No. No. in arrears Warrants issued
of lettings
B 44,196 6,960 93 (1964-65)
L 47,574 1,378 169 (1964)
Amount Total
Authority B recovered arrears
involved
E ;E
Arrears received in full . . . . . . . . . 80 ...... 1,096 1,096
Arrears received in part ...... 4 ...... 42 87
No money recovered, insufficient goods 9 ...... - 151
- - -
93 f1,138 E1,334
- - -
20
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