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Obscure legal terminology: distress

09 July 2007

If asked about the concept of distress and what it might mean in English law, many people might associate it with the area of personal injury law – the idea of an injured person being distressed is an easy one to understand. But they would be wrong, says Nick Cox.

The Shorter Oxford English Dictionary defines distress as ‘severe pain, sorrow, anguish’, but a few lines on there is a hint of a darker meaning: the line simply reads: ‘Law = distraint’. This definition brings the concept of punishment  to mind, and in some ways that is not far from the truth. The Shorter Oxford defines distraint as ‘the seizure of chattels to make a person pay rent etc’.

The word comes originally from the Latin destringere meaning to draw tight, like a noose, which in medieval times was described as destreindre.

For centuries, bailiffs have roamed the land looking to exercise distress on unwary but recalcitrant tenants on behalf of disappointed landlords. All they needed was a warrant, issued by the landlord himself, and they had the right to seize any chattels (ie goods) owned, or apparently owned, by the tenant, which happened to be on the property.

‘Seizure’ often meant removal and (eventually) sale. Later, the concept of ‘walking possession’ was developed. This meant that the goods were not physically removed but the bailiff took notional possession by virtue of a signed agreement and the tenant lost the power to sell or dispose of them.

Sadly, for some, the phrase is due to pass into legal folklore, to be replaced by the concept of ‘commercial rent arrears recovery’ (CRAR). What will CRAR entitle a landlord to do? You’ve guessed it; it will allow him to seize goods owned by the tenant on the property. So the concept, at least, will survive.

The main difference will be that the tenant will have to be given notice, whereas with distress, the bailiff could just turn up on the doorstep. It remains to be seen if CRAR (or ‘son of distress’ as some are calling it) is as effective as its forebear, or whether the smart move for landlords is to buy shares in van rental companies as they watch the tenant’s chattels drive off into the sunset before the bailiff comes to call.

Partner Nick Cox specialises in commercial contract disputes and has particular expertise in contentious landlord and tenant work. He is a member of the Property Litigation Association, an ADR Group-accredited mediator and a Fellow of the Chartered Institute of Arbitrators.

Contact nick.cox@willans.co.uk

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Nick Cox LLB (Hons)
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