Ancient common law has existed for over 750 years. It arises from the relationship between a landlord and tenant. Most leases do not mention or enlarge on the right of distress, but it is always prudent to check.
Commercial distress is a landlord’s power. A landlord, if an individual can levy himself, but this is not for the faint hearted. Corporate bodies must use a certificated bailiff.
A landlord and tenant relationship, i.e. a lease, (not a licence) must exist when rent is due and when a bailiff attends to levy. Please note that the lease must not have been surrendered, forfeited or expired with no statutory continuation. Insolvency can preclude or restrict action.
This can only be done at the demised premises on the lease and only between sunrise and sunset, and not on a Sunday.
Using a bailiff
A bailiff will use his or her standard form of warrant, and a separate instruction and form must be used for each premises. The bailiff will attend and enter the premises but will not force entry. The bailiff will make an inventory of the goods and chattels to be seized. Distress is completed by the bailiff impounding goods and removing them immediately. This, however, is rarely adopted by landlords; or generally it is usual by entering into a walking in possession agreement, usually for a period of 5 days, with the tenant. This impounds the goods on the premises.
If payment is not forthcoming at the expiry of the walking in possession agreement; the bailiff will return and remove the goods for public auction. The landlord is not allowed to purchase the goods. Any surplus must be returned to the tenant, after deducting the arrears and costs.
This is a general guide and is advisable to take professional advice before commencing any action. Further information can be found on www.sjcollections.co.uk.
Forfeiture of lease by means of peaceable entry
A landlord can take this action him or herself, but it would normally be taken at unsociable hours, i.e. in the middle of the night or when the premises are not occupied.
The landlord or a bailiff will attend with a locksmith, change the locks, and enter the premises. A statutory notice will be displayed at the outside of the premises stating that the lease has been forfeited and the premises repossessed.
Prior to any action, it must be confirmed that the lease is for a commercial lease with no residential premises included in commercial premises.
If goods are on the premises, a notice must be served pursuant to the relative Interference with Goods Act 1977. The Torts (Interference with Goods) Act 1977 allows a landlord to sell goods left in a property if reasonable efforts to trace the tenant or owner of the goods fail. The Act confers on you a power of sale of the uncollected goods, provided you follow the Act’s notice requirements.
Possible outcomes for these actions
1. Never to hear from the tenant again.
2. The tenant negotiates with the landlord and the lease is reinstated.
3. The tenant makes an application for relief via his solicitors.
4. The tenant breaks back into the premises, this is extremely rare, but could happen.
Further advice and useful information regarding this and other matters can be obtained from S J Collections Ltd. on www.sjcollections.co.uk.
