Definition of distraint
- (law) The legal right of a landlord to seize the property of a tenant in the event of nonpayment of rent
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. 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." 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, but today some kind of court action is usually required.
The goods are held for a given amount of time, and if the rent is not paid, they may be sold. 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.
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. 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).
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. Decisions like Luria Bros. and Co. v. Allen, however, have upheld the rule because as a landlord's self-help remedy it involves no state action and thus cannot violate due process rights.
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