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{{Short description|Seizure of property to obtain payments}}
{{multiple issues|
{{original research|date=May 2018}}
{{primary sources|date=May 2018}}
{{Globalize|date=December 2010}}
{{Globalize|date=December 2010}}
}}
[[File:Schwingen Pfändung.jpg|thumb|''Pfändung'' by {{Interlanguage link multi|Peter Schwingen|de}}]]
[[File:Schwingen Pfändung.jpg|thumb|275px|A distraint in progress, depicted in an 1846 painting by [[Peter Schwingen]]]]


'''Distraint''' or '''distress''' is "the seizure of someone’s property in order to obtain payment of [[renting|rent]] or other money owed",<ref>[https://jade.io/citation/1418273 "Walsh v Lonsdale" [1882<nowiki>]</nowiki> 21 Ch 9]</ref> especially in [[common law]] countries.<ref>{{cite web|url=http://www.askoxford.com/concise_oed/distraint?view=uk|title=Oxford Dictionaries|publisher=}}</ref> 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."<ref>Steven H. Gifis, ''Barron's Law Dictionary'', p. 139 (2d ed. 1984).</ref> Distraint typically involves the seizure of goods ([[Personal property|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. Today, some kind of court action is usually required,<ref>"Distress", Britannica CD 2000</ref> the main exception being certain tax authorities, such as [[HM Revenue and Customs]] in the United Kingdom and, in the United States, the [[Internal Revenue Service]]—agencies that retain the legal power to levy assets (by either seizure or distraint) without a court order.<ref>See ''United States v. Rodgers'', 461 U.S. 677, 103 S. Ct. 2132, 83-1 U.S. Tax Cas. (CCH) paragr. 9374 (1983) (''dicta'') and ''Brian v. Gugin'', 853 F. Supp. 358, 94-1 U.S. Tax Cas. (CCH) paragr. 50,278 (D. Idaho 1994), ''aff’d'', 95-1 U.S. Tax Cas. (CCH) paragr. 50,067 (9th Cir. 1995).</ref>
'''Distraint''' or '''distress''' is "the seizure of someone’s property in order to obtain payment of [[renting|rent]] or other money owed",<ref>[https://jade.io/citation/1418273 ''Walsh v Lonsdale'' (1882<nowiki>)</nowiki> 21 Ch 9]</ref> especially in [[common law]] countries.<ref>{{cite web|url=http://www.askoxford.com/concise_oed/distraint?view=uk|title=Oxford Dictionaries}}{{dead link|date=September 2022|bot=medic}}{{cbignore|bot=medic}}</ref> 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."<ref>Steven H. Gifis, ''Barron's Law Dictionary'', p. 139 (2d ed. 1984).</ref> Distraint typically involves the seizure of goods ([[Personal property|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. Today, some kind of court action is usually required,<ref>"Distress", Britannica CD 2000</ref> the main exception being certain tax authorities – such as [[HM Revenue and Customs]] in the United Kingdom and the [[Internal Revenue Service]] in the United States – and other agencies that retain the legal power to levy assets (by either seizure or distraint) without a court order.<ref>See ''United States v. Rodgers'', 461 U.S. 677, 103 S. Ct. 2132, 83-1 U.S. Tax Cas. (CCH) paragr. 9374 (1983) (''dicta'') and ''Brian v. Gugin'', 853 F. Supp. 358, 94-1 U.S. Tax Cas. (CCH) paragr. 50,278 (D. Idaho 1994), ''aff’d'', 95-1 U.S. Tax Cas. (CCH) paragr. 50,067 (9th Cir. 1995).</ref>


==History==
==History==
Article 61 of [[Magna Carta]] extended the law of distraint to the monarch's properties, including "our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children".<ref>{{cite wikisource|Magna Carta (trans. Davis)|at=Article 61}}</ref>
⚫
Article 61 of the [[Magna Carta]] extended the law of distraint to the monarch's properties. In England in 1267 the [[Statute of Marlborough]] was passed making distraint unlawful without a court order.<ref name="UKMJ1">{{cite book|first=|last=Ministry of Justice, England|authorlink=|author=|title=The Statute of Marlborough 1267|url=http://www.legislation.gov.uk/aep/Hen3cc1415/52/1/contents|publisher=United Kingdom Ministry of Justice|location=United Kingdom|id=|page=|chapter=I|date=1267|accessdate=October 6, 2014|language=}}</ref><ref name="LCUK1">{{Cite book|first=|last=Law Commission and the Scottish Law Commission|authorlink=|author=|title=Statute Law Repeals: Consulation Paper Civil and Criminal Justice|url=http://lawcommission.justice.gov.uk/docs/slr_civil_and_criminal_justice.pdf|format=PDF|publisher=Law Commission|location=United Kingdom|section=GROUP 3 - DISTRESS|pages=12–13|date=March 2010|accessdate=October 6, 2014|language=|quote=}}</ref>


⚫
In England in 1267 the [[Statute of Marlborough]] was passed making distraint unlawful without a court order.<ref name="UKMJ1">{{cite web|title=The Statute of Marlborough 1267 [Distress]|url=http://www.legislation.gov.uk/aep/Hen3cc1415/52/1/contents|publisher=The National Archives|location=United Kingdom|at=Section I|date=1267|access-date=21 June 2020 }}</ref><ref name="LCUK1">{{Cite book|last=Law Commission and the Scottish Law Commission|title=Statute Law Repeals: Consultation Paper Civil and Criminal Justice|url=http://lawcommission.justice.gov.uk/docs/slr_civil_and_criminal_justice.pdf|format=PDF|publisher=Law Commission|location=United Kingdom|section=GROUP 3 - DISTRESS|pages=12–13|date=March 2010|access-date=6 October 2014|archive-url=https://web.archive.org/web/20141006114954/http://lawcommission.justice.gov.uk/docs/slr_civil_and_criminal_justice.pdf|archive-date=2014-10-06|url-status=dead}}</ref>
:Chapter 1 (Distress, or Unlawful Distress) of the Statute of Marlborough 1267 provided that: all persons "as well of high as of low estate" were to receive justice in the King's court. No individual was to be entitled to seek "revenge or distress of his own authority" against his neighbour for any damage or injury suffered without first obtaining an award from the court.<ref name="UKMJ1" /><ref name="LCUK1" />


Distress in this context was (and still is) a summary remedy designed to secure performance of an obligation or settlement of an outstanding debt.<ref name="LCUK1" /> First, it was the bedrock of the notion that all citizens, irrespective of rank, were entitled to seek civil justice through the King's court or courts. Secondly, it laid down a prohibition on individuals taking the law into their own hands and seeking remedies (revenge or distress) without the court's sanction.<ref name="LCUK1" /> That prohibition was reinforced with criminal penalties.<ref name="LCUK1" />
{{Quote|Chapter 1 [of the Statute of Marlborough 1267] provided that all persons "as well of high as of low estate" were to receive justice in the King's court. No individual was to be entitled to seek "revenge or distress of his own authority" against his neighbour for any damage or injury suffered without first obtaining an award from the court.<ref name="LCUK1" />}}
Distress in this context was (and still is) a summary remedy designed to secure performance of an obligation or settlement of an outstanding debt.<ref name="LCUK1" /> First, it was the bedrock of the notion that all citizens, irrespective of rank, were entitled to seek civil justice through the king's court or courts. Secondly, it laid down a prohibition on individuals taking the law into their own hands and seeking remedies (revenge or distress) without the court's sanction.<ref name="LCUK1" /> That prohibition was reinforced with criminal penalties.<ref name="LCUK1" />


==Procedure==
==Procedure==
The goods are held for a given amount of time, and if the rent is not paid, they may be sold.{{Citation needed|date=October 2007}} 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.
The goods are held for a given amount of time, and if the rent is not paid, they may be sold.{{Citation needed|date=October 2007}} 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 &ndash; these are called "privileged goods". Such goods include, for example, goods belonging to the state, [[fixture (property law)|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.
Certain goods are protected against distraint; these are called "privileged goods". Such goods include, for example, goods belonging to the state, [[fixture (property law)|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.

⚫
Forced entry is usually not permitted by the distraint officer, but in the UK, in the event of entry being refused to the HMRC distraint officer, HMRC can apply for a break open warrant under section 61(2) of the [[Taxes Management Act 1970]]. This permits forced entry to the debtor's premises by the HMRC distraint officer. Any additional costs incurred from obtaining the warrant are passed onto the debtor and added to the debt to be collected by distraint.

⚫
Also in the UK, forced entry is also permitted if the distress warrant is for amounts of a criminal nature, for instance court fines. The use of forced entry for these purposes is covered in the [[Domestic Violence, Crime and Victims Act 2004]].<ref>{{Cite legislation UK |type=act |year=2004 |chapter=28 |act=Domestic Violence, Crime and Victims Act 2004 }}</ref>{{primary-inline|date=May 2018}}

== In various countries ==

⚫
===United Kingdom===
In the United Kingdom the proposals which have been implemented to reduce the area to post-warrant executions by registered court bailiffs (enforcement officers) gained serious traction in the late 20th century.<ref name="LCUK2">{{Cite book|last=Law Commission and the Scottish Law Commission|title=Statute Law Repeals: consultation Paper Civil and Criminal Justice|url=http://lawcommission.justice.gov.uk/docs/slr_civil_and_criminal_justice.pdf|format=PDF|publisher=Law Commission|location=United Kingdom|section=GROUP 3 - DISTRESS|pages=11–19|date=March 2010|access-date=October 6, 2014|archive-url=https://web.archive.org/web/20141006114954/http://lawcommission.justice.gov.uk/docs/slr_civil_and_criminal_justice.pdf|archive-date=2014-10-06|url-status=dead}}</ref>


⚫
In post-warrant execution and former civil distress concerns were regularly expressed that certain instances of distraint/distress violate human rights, such as [[European Convention on Human Rights#Article 8|Article 8 of the European Convention on Human Rights]], the right to respect for private life.<ref>''Fuller v Happy Shopper Markets Ltd'' [2001] All ER</ref> The Lord Chancellor's Department (now the [[Ministry of Justice]]) in May 2001 issued [http://www.dca.gov.uk/consult/distress/distrent.htm ''Enforcement Review Consultation Paper No. 5: Distress for Rent''], which spurred the abolition of distraint for residential leases and reduced it to peaceable re-entry, that is closing down of commercial premises and no taking of goods, by authorised, registered bailiffs ("enforcement officers") in commercial property subject to safeguards &ndash; to ensure compliance with the [[Human Rights Act 1998]].
⚫
Forced entry is usually not permitted by the distraint officer, but in the UK, in the event of entry being refused to the [[HMRC]] distraint officer, [[HM Revenue and Customs]] can apply for a break open warrant under Section 61(2) of the [[Taxes Management Act 1970]]. This permits forced entry to the debtor's premises by the HMRC distraint officer. Any additional costs incurred from obtaining the warrant are passed onto the debtor and added to the debt to be collected by distraint.


⚫
It was thought that distraint would be abolished in the UK when section 71 of the [[Tribunals, Courts and Enforcement Act 2007]] came into force, replacing it, solely for [[lease]]s on [[commercial property]], by a statutory system of commercial rent arrears recovery (CRAR).<ref>[[Tribunals, Courts and Enforcement Act 2007]], ss.72-87/ Sch.14</ref><ref name="explan3">{{ cite web|access-date=2008-03-05 |url=http://www.england-legislation.hmso.gov.uk/acts/acts2007/en/07en15-e.htm |archive-url=https://archive.today/20121223200109/http://www.england-legislation.hmso.gov.uk/acts/acts2007/en/07en15-e.htm |url-status=dead |archive-date=2012-12-23 |title=Explanatory Notes to Tribunals, Courts And Enforcement Act 2007 |year=2007 |publisher=Office of Public Service Information |quote=paras.317-405 }}</ref> (The Tribunals, Courts and Enforcement Act 2007 received [[royal assent]] in July 2007 but no date for implementation was published. A commencement order{{which|date=November 2024}} in 2012 followed which brings into force sections 93 and 94 of the act (on 1 October 2012 and 17 May 2012 respectively), which amend the [[Charging Orders Act 1979]].)
⚫
Also in the UK, forced entry is also permitted if the distress warrant is for amounts of a criminal nature; court fines for instance. The use of forced entry for these purposes is covered in the [[Domestic Violence, Crime and Victims Act 2004]].<ref>{{cite web|title=Domestic Violence, Crime and Victims Act 2004|url=http://www.legislation.gov.uk/ukpga/2004/28/contents}}</ref>


Bailiffs must provide evidence of their identification upon request by the debtor, as a well as sight of the warrant providing them with authority to enter.<ref name=nodebtcollectordistress/> They must also legally give the debtor an enforcement notice seven days before they visit.<ref name=nodebtcollectordistress/> In contrast, private sector debt collectors can chase a debtor to pay what is owed to a creditor, but they cannot levy distress.<ref name=nodebtcollectordistress/> Debt collectors are not allowed to pretend to be a bailiff.<ref name=nodebtcollectordistress/> Debtors can also check the register of certificated bailiffs if they are unsure about whether a bailiff is certificated or not.<ref name=nodebtcollectordistress>[http://researchbriefings.files.parliament.uk/documents/SN04103/SN04103.pdf ''Bailiffs''] Lorraine Conway and Jack Dent. House of Commons Library: Briefing Paper Number 04103, 9 June 2017</ref>
⚫
==Reform in the United Kingdom==
⚫
In the United Kingdom, there have been proposals to reform the remedy of distraint.<ref name="LCUK2">{{Cite book|first=|last=Law Commission and the Scottish Law Commission|authorlink=|author=|title=Statute Law Repeals: Consulation Paper Civil and Criminal Justice|url=http://lawcommission.justice.gov.uk/docs/slr_civil_and_criminal_justice.pdf|format=PDF|publisher=Law Commission|location=United Kingdom|section=GROUP 3 - DISTRESS|pages=11–19|date=March 2010|accessdate=October 6, 2014|language=|quote=}}</ref> Concerns have been expressed that the use of the distraint remedy may result in violations of human rights, such as [[European Convention on Human Rights#Article 8 - right to respect for private life|Article 8 of the European Convention on Human Rights]], the right to respect for private life.<ref>''Fuller v Happy Shopper Markets Ltd'' [2001] All ER</ref> The Lord Chancellor's Department (now the [[Ministry of Justice]]) in May 2001 issued the consultation paper [http://www.dca.gov.uk/consult/distress/distrent.htm ''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]].


Practices relating to distress or seizing goods are now referred to as "[[taking control of goods]]" and governed by the Taking Control of Goods Regulations 2013 ([[SI 2013]]/1894).<ref>UK Legislation, [https://www.legislation.gov.uk/uksi/2013/1894/contents The Taking Control of Goods Regulations 2013], made 26 July 2013, came into force on 6 April 2014, accessed 10 June 2024</ref>
⚫
It was thought that distraint would be abolished in the UK when the [[Tribunals, Courts and Enforcement Act 2007]], s.71 came into force, replacing the remedy, solely for [[lease]]s on [[commercial property]], by a statutory system of [[Commercial Rent Arrears Recovery]] (CRAR)<ref>[[Tribunals, Courts and Enforcement Act 2007]], ss.72-87/ Sch.14</ref><ref name="explan3">{{ cite web|accessdate=2008-03-05 |url=http://www.england-legislation.hmso.gov.uk/acts/acts2007/en/07en15-e.htm |title=Explanatory Notes to Tribunals, Courts And Enforcement Act 2007 |year=2007 |publisher=Office of Public Service Information |quote=paras.317-405 }}{{dead link|date=December 2016 |bot=InternetArchiveBot |fix-attempted=yes }}</ref> (the Tribunals, Courts and Enforcement Act 2007 received Royal Assent July 2007 but no date for implementation was published. The Tribunals, Courts and Enforcement Act 2007 (Commencement No 8) Order 2012 has been introduced. The order brings into force sections 93 and 94 of the Act (on 1 October 2012 and 17 May 2012 respectively), both of which amend the [[Charging Orders Act 1979]].)


==Distraint in the United States==
===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 to the United States Constitution|Fourteenth Amendment]].<ref>Korngold, G. ''Can Distraint Stand Up as a Landlord's Remedy?'' 5 Real Est. L.J. 242 (1977)</ref> In decisions like ''Luria Bros. and Co. v. Allen'', 672 F.2d 347 (3d Cir. 1982), however, the courts have upheld the rule because, as a landlord's self-help remedy, distraint involves no state action and thus cannot violate due process rights.<ref>Casner, A.J. et al., ''Cases and Text on Property, Fifth Edition.'' Aspen Publishers, New York: NY, p. 526</ref> In the case of distraint by the federal government for collection of taxes, the power of administrative levy by distraint (distress) dates back to the year 1791, according to the U.S. Supreme Court.<ref>Act of March 3, 1791, Ch. 15, § 23, {{USStat|1|199}}, 204, as cited in ''Phillips v. Commissioner'', 283 U.S. 589, 595, n. 5 (1931), at [http://scholar.google.com/scholar_case?case=9716884554818037602&q=%22283+U.S.+589%22&hl=en&as_sdt=3,44], providing for "levy by distress and sale."</ref>
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 to the United States Constitution|Fourteenth Amendment]].<ref>Korngold, G. ''Can Distraint Stand Up as a Landlord's Remedy?'' 5 Real Est. L.J. 242 (1977)</ref> In decisions like ''Luria Bros. and Co. v. Allen'', 672 F.2d 347 (3d Cir. 1982), however, the courts have upheld the rule because, as a landlord's self-help remedy, distraint involves no state action and thus cannot violate due process rights.<ref>Casner, A.J. et al., ''Cases and Text on Property, Fifth Edition.'' Aspen Publishers, New York: NY, p. 526</ref> In the case of distraint by the federal government for collection of taxes, the power of administrative levy by distraint (distress) dates back to the year 1791, according to the U.S. Supreme Court.<ref>Act of March 3, 1791, Ch. 15, § 23, {{USStat|1|199}}, 204, as cited in ''Phillips v. Commissioner'', 283 U.S. 589, 595, n. 5 (1931), at [https://scholar.google.com/scholar_case?case=9716884554818037602&q=%22283+U.S.+589%22&hl=en&as_sdt=3,44], providing for "levy by distress and sale".</ref>


==Distraint in Sweden==
===Sweden===
In [[Sweden]], distraint (Swedish:''Utmätning'') is performed by the Swedish [[Enforcement Authority]]. Bank assets and similar are taken first, but if needed the Enforcement Authority can visit people's homes, assisted by the police. Goods needed for an acceptable standard of living are protected, like clothes, TV-sets and stoves. Protected items that are expensive can be replaced with cheaper, and excess items can be taken. Goods found in the home, but belonging to others, e.g. to the girlfriend, can also be taken unless it is proven who it belongs to. Homes can be forcibly sold (Swedish:''exekutiv auktion''), and everyone living there might be [[eviction|evicted]].
In [[Sweden]], distraint ({{Lang|sv|utmätning}}) is performed by the Swedish [[Enforcement Authority]]. Bank assets and similar are taken first, but if needed the Enforcement Authority can visit people's homes, assisted by the police. Goods needed for an acceptable standard of living are protected, like clothes, TV-sets and stoves. Protected items that are expensive can be replaced with cheaper, and excess items can be taken. Goods found in the home, but belonging to others, e.g. to a romantic partner, can also be taken unless it is proven who it belongs to. Homes can be forcibly sold ({{Lang|sv|exekutiv auktion}}), and everyone living there might be [[eviction|evicted]].


==See also==
==See also==
* [[attachment (law)]]
* [[Attachment (law)]]
* [[collection agency]]
* [[Collection agency]]
* [[conversion (law)]]
* [[Foreclosure]]
* [[Quia Emptores]]
* [[Quia Emptores]]
* [[self-help (law)]]
* [[Repossession]]
* [[sequestration (law)]]
* [[Self-help (law)]]
* [[tax levies]]
* [[Sequestration (law)]]
* [[foreclosure]]
* [[Tax levies]]
* [[warrant sale]]
* [[Warrant sale]]
* [[theft]]


==Notes==
==Notes==
Line 47: Line 61:


==External links==
==External links==
{{commons category-inline}}
{{Commons category-inline}}


{{debt}}
{{debt}}
{{Authority control}}


[[Category:Judicial remedies]]
[[Category:Judicial remedies]]

Latest revision as of 18:54, 19 November 2024

A distraint in progress, depicted in an 1846 painting by Peter Schwingen

Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent or other money owed",[1] especially in common law countries.[2] 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."[3] 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. Today, some kind of court action is usually required,[4] the main exception being certain tax authorities – such as HM Revenue and Customs in the United Kingdom and the Internal Revenue Service in the United States – and other agencies that retain the legal power to levy assets (by either seizure or distraint) without a court order.[5]

History

[edit]

Article 61 of Magna Carta extended the law of distraint to the monarch's properties, including "our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children".[6]

In England in 1267 the Statute of Marlborough was passed making distraint unlawful without a court order.[7][8]

Chapter 1 [of the Statute of Marlborough 1267] provided that all persons "as well of high as of low estate" were to receive justice in the King's court. No individual was to be entitled to seek "revenge or distress of his own authority" against his neighbour for any damage or injury suffered without first obtaining an award from the court.[8]

Distress in this context was (and still is) a summary remedy designed to secure performance of an obligation or settlement of an outstanding debt.[8] First, it was the bedrock of the notion that all citizens, irrespective of rank, were entitled to seek civil justice through the king's court or courts. Secondly, it laid down a prohibition on individuals taking the law into their own hands and seeking remedies (revenge or distress) without the court's sanction.[8] That prohibition was reinforced with criminal penalties.[8]

Procedure

[edit]

The goods are held for a given amount of time, and if the rent is not paid, they may be sold.[citation needed] 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.

Forced entry is usually not permitted by the distraint officer, but in the UK, in the event of entry being refused to the HMRC distraint officer, HMRC can apply for a break open warrant under section 61(2) of the Taxes Management Act 1970. This permits forced entry to the debtor's premises by the HMRC distraint officer. Any additional costs incurred from obtaining the warrant are passed onto the debtor and added to the debt to be collected by distraint.

Also in the UK, forced entry is also permitted if the distress warrant is for amounts of a criminal nature, for instance court fines. The use of forced entry for these purposes is covered in the Domestic Violence, Crime and Victims Act 2004.[9][non-primary source needed]

In various countries

[edit]

United Kingdom

[edit]

In the United Kingdom the proposals which have been implemented to reduce the area to post-warrant executions by registered court bailiffs (enforcement officers) gained serious traction in the late 20th century.[10]

In post-warrant execution and former civil distress concerns were regularly expressed that certain instances of distraint/distress violate human rights, such as Article 8 of the European Convention on Human Rights, the right to respect for private life.[11] The Lord Chancellor's Department (now the Ministry of Justice) in May 2001 issued Enforcement Review Consultation Paper No. 5: Distress for Rent, which spurred the abolition of distraint for residential leases and reduced it to peaceable re-entry, that is closing down of commercial premises and no taking of goods, by authorised, registered bailiffs ("enforcement officers") in commercial property subject to safeguards – to ensure compliance with the Human Rights Act 1998.

It was thought that distraint would be abolished in the UK when section 71 of the Tribunals, Courts and Enforcement Act 2007 came into force, replacing it, solely for leases on commercial property, by a statutory system of commercial rent arrears recovery (CRAR).[12][13] (The Tribunals, Courts and Enforcement Act 2007 received royal assent in July 2007 but no date for implementation was published. A commencement order[which?] in 2012 followed which brings into force sections 93 and 94 of the act (on 1 October 2012 and 17 May 2012 respectively), which amend the Charging Orders Act 1979.)

Bailiffs must provide evidence of their identification upon request by the debtor, as a well as sight of the warrant providing them with authority to enter.[14] They must also legally give the debtor an enforcement notice seven days before they visit.[14] In contrast, private sector debt collectors can chase a debtor to pay what is owed to a creditor, but they cannot levy distress.[14] Debt collectors are not allowed to pretend to be a bailiff.[14] Debtors can also check the register of certificated bailiffs if they are unsure about whether a bailiff is certificated or not.[14]

Practices relating to distress or seizing goods are now referred to as "taking control of goods" and governed by the Taking Control of Goods Regulations 2013 (SI 2013/1894).[15]

United States

[edit]

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.[16] In decisions like Luria Bros. and Co. v. Allen, 672 F.2d 347 (3d Cir. 1982), however, the courts have upheld the rule because, as a landlord's self-help remedy, distraint involves no state action and thus cannot violate due process rights.[17] In the case of distraint by the federal government for collection of taxes, the power of administrative levy by distraint (distress) dates back to the year 1791, according to the U.S. Supreme Court.[18]

Sweden

[edit]

In Sweden, distraint (utmätning) is performed by the Swedish Enforcement Authority. Bank assets and similar are taken first, but if needed the Enforcement Authority can visit people's homes, assisted by the police. Goods needed for an acceptable standard of living are protected, like clothes, TV-sets and stoves. Protected items that are expensive can be replaced with cheaper, and excess items can be taken. Goods found in the home, but belonging to others, e.g. to a romantic partner, can also be taken unless it is proven who it belongs to. Homes can be forcibly sold (exekutiv auktion), and everyone living there might be evicted.

See also

[edit]

Notes

[edit]
  1. ^ Walsh v Lonsdale (1882) 21 Ch 9
  2. ^ "Oxford Dictionaries".[dead link‍]
  3. ^ Steven H. Gifis, Barron's Law Dictionary, p. 139 (2d ed. 1984).
  4. ^ "Distress", Britannica CD 2000
  5. ^ See United States v. Rodgers, 461 U.S. 677, 103 S. Ct. 2132, 83-1 U.S. Tax Cas. (CCH) paragr. 9374 (1983) (dicta) and Brian v. Gugin, 853 F. Supp. 358, 94-1 U.S. Tax Cas. (CCH) paragr. 50,278 (D. Idaho 1994), aff’d, 95-1 U.S. Tax Cas. (CCH) paragr. 50,067 (9th Cir. 1995).
  6. ^ Magna Carta (trans. Davis) . Article 61 – via Wikisource.
  7. ^ "The Statute of Marlborough 1267 [Distress]". United Kingdom: The National Archives. 1267. Section I. Retrieved 21 June 2020.
  8. ^ a b c d e Law Commission and the Scottish Law Commission (March 2010). "GROUP 3 - DISTRESS". Statute Law Repeals: Consultation Paper Civil and Criminal Justice (PDF). United Kingdom: Law Commission. pp. 12–13. Archived from the original (PDF) on 2014-10-06. Retrieved 6 October 2014.
  9. ^ "Domestic Violence, Crime and Victims Act 2004", legislation.gov.uk, The National Archives, 2004 c. 28
  10. ^ Law Commission and the Scottish Law Commission (March 2010). "GROUP 3 - DISTRESS". Statute Law Repeals: consultation Paper Civil and Criminal Justice (PDF). United Kingdom: Law Commission. pp. 11–19. Archived from the original (PDF) on 2014-10-06. Retrieved October 6, 2014.
  11. ^ Fuller v Happy Shopper Markets Ltd [2001] All ER
  12. ^ Tribunals, Courts and Enforcement Act 2007, ss.72-87/ Sch.14
  13. ^ "Explanatory Notes to Tribunals, Courts And Enforcement Act 2007". Office of Public Service Information. 2007. Archived from the original on 2012-12-23. Retrieved 2008-03-05. paras.317-405
  14. ^ a b c d e Bailiffs Lorraine Conway and Jack Dent. House of Commons Library: Briefing Paper Number 04103, 9 June 2017
  15. ^ UK Legislation, The Taking Control of Goods Regulations 2013, made 26 July 2013, came into force on 6 April 2014, accessed 10 June 2024
  16. ^ Korngold, G. Can Distraint Stand Up as a Landlord's Remedy? 5 Real Est. L.J. 242 (1977)
  17. ^ Casner, A.J. et al., Cases and Text on Property, Fifth Edition. Aspen Publishers, New York: NY, p. 526
  18. ^ Act of March 3, 1791, Ch. 15, § 23, 1 Stat. 199, 204, as cited in Phillips v. Commissioner, 283 U.S. 589, 595, n. 5 (1931), at [1], providing for "levy by distress and sale".
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