The Civil Enforcement Act allows a Bailiff on behalf of a landlord to seize a tenant’s personal property to recover rental arrears. Distress is a remedy that a landlord can use to recover unpaid rent without having to go to court.
The process of Distress allows a landlord to hire a Civil Enforcement Agency to seize property on the rented premises that belongs to the tenant in order to recover rent money that is owed.
The property can then be sold and the proceeds used to repay the rent and costs incurred by the landlord. The right to use distress arises as soon as rent is late and the process must be carried out in accordance with the law. The landlord cannot use this process to recover other money owing by the tenant.
The Landlord Distress Seizure Process:
- A seizure of the tenant’s personal property may only be made through a Civil Enforcement Agency by a civil enforcement bailiff on instructions from a landlord in the form of a Distress Warrant
- Some property is generally exempt from seizure under the authority of a Distress Warrant and is specified in the Information for Debtor form (PDF File)
- At the time of a seizure, the tenant must be provided with a Notice of Objection to Seizure and Information for Debtor form. The tenant can complete the form if he or she wishes to object to the seizure of some or all of the property. The Notice of Objection to Seizure must be completed and served on the Civil Enforcement Agency within 15 days of the person being served with the seizure documents.
- If a tenant objects to the seizure of property, the seized property cannot be sold without the court’s permission. However, if there is no valid reason for objecting to the seizure, the tenant may be responsible for paying the landlord’s costs in taking the matter to court
- There are three options for dealing with the seized goods while awaiting sale:
- Bailee’s undertaking with debtor
- You can avoid additional moving and storage costs if the tenant files an Objection
- There is a possible risk that they will take off with the goods and be hard to find
- Bailee’s undertaking with landlord
- Landlord then becomes responsible for the security and care of the goods so they must be stored in a secured storage area free from adverse conditions
- There may be a cost incurred for removal and storage
- Storage with a third party storage facility hired by the Civil Enforcement Agency/Bailiff
- There will certainly be a cost incurred for removal and storage
- Bailee’s undertaking with debtor
- If there is no objection to the seizure, the seized property may be sold without a court order by any commercially reasonable manner.
- The landlord has priority over unsecured creditors. If seized property has been pledged as security, but the security interest has not been registered in the Personal Property Registry before the seizure, the landlord may have priority over that secured creditor in relation to that property.
- a Distress Warrant must be enforced before a Notice to Terminate (if given) expires
Considerations Prior to Seizure:
- You can only seize for what is deemed “rent” in your agreement.
- Seizure cannot be effected if the tenancy has been terminated. There must be an active landlord-tenant relationship in order to seize.
- A Landlord Distress Seizure does not force the tenant to move out of the premises. This seizure in no way forces your tenant to vacate. If you wish to evict your tenant you will need to obtain an Order for Possession.
- A Civil Enforcement Bailiff cannot force entry into the premises. SERV-IT can obtain a Break and Enter Order if necessary.
- The tenant may not have any goods with enough value to cover your arrears and the cost of seizure.
- We suggest you make note of specialized items during your inspection reports such as items behind glass or collector items.