Distress
2) Rent should have fallen in arrears, which happens a
- Definition: The remedy of distress empowers a landlord to enter upon
the demised property and levy distress i.e. to seize and take away
goods available on the premises and impound them as a pledge for the
payment of any arrears of rent due to him from the tenant.
- The remedy of distress does not exist in Jamaica where it was
abolished by the Law Reform (Landlords and Tenants) Act 1979,
section 3.
Restrictions on Distress
1) Distress cannot be levied if another remedy for
unpaid rent is being pursued.
The Landlord cannot have both remedies of forfeiture and
distress
Re Lussier et al and Dennison
o Landlord changed locks on the premises and
thereby effected a forfeiture of the lease and at
the same time purported to seize all tools and
equipment of the tenant.
o Held: LL couldn’t have both forfeiture and
distress.
A Landlord who sues and gets judgment for arrears of rent
cannot avail himself of distress, even if the judgment debt
has not been paid.
Chancellor v Webster
day after it is due (Duppa v Mayho)
3) The landlord should be in possession of an
immediate reversion of the premises on which distress
is being levied and from which rent is due.
- If there is an assignment of a reversion, the remedy will
be lost to both the assignee and the assignor.
- Remedy not available to a head-lessor against a
defaulting sub-lessee since there’s no Privity of estate
between them.
- Remedy not available against an assignee of a former
tenant who assigns his term after he had accumulated
arrears. (Wharfland Ltd. v South London Co-operative: a
landlord may not levy a distress against the goods of an
assignee in respect of arrears of rent due before the
assignment and owed by the assignor).
- Lewis v Baker:
- Held: As a reversionary lease merely creates an interesse termini
until entry thereunder, it does not enlarge the term of the original lease.
- If a lessee with an original lease and a reversionary lease or an
agreement therefor underlets the premises for a term exceeding the
original lease, he cannot distrain for rent during the original lease at
common law for want of a reversion
Distrainable Goods
Fixtures not Distrainable
All chattels or movables found on the premises can at
common law be taken in distress; fixtures, however, cannot
be distrained.
Crossley Bros. v Lee
- A gas engine which was affixed to the floor of the leased premises by
bolts and screws was held to be a fixture and therefore not distrainable.
Provincial Bill Posting v Low Moor Iron Co.
- Held that advertisement hoardings / boards which were erected on the
demised land by the tenant were fixtures and therefore not distrainable.
- Held, that, even assuming the agreement created the relation of
landlord and tenant between the parties, the advertisement hoardings,
although removable by the plaintiffs at the end of the tenancy, were
fixtures and not mere chattels, and were therefore not distrainable, and
the plaintiffs were entitled to recover damages for the wrongful
distress.
Goods of Third Parties
At common law goods of third parties can be distrained.
Cox v Boyce
- Goods of the tenant’s son were distrained.
Durant v Milne
- Furniture which belonged to the tenant’s wife was
distrained.
Statutory Provisions
Under Statute, third parties can avoid seizure of their
possessions by serving a declaration in writing on the
landlord or bailiff acting on his behalf. [Sec. 25 Bdos Act]
The declaration should depose the following facts:
- That the tenant has no property rights in the goods.
- That the goods are the deponent’s property
- The rent due from the lodger or sub-tenant to the
tenant
- Attached to the declaration should be an inventory
describing all the goods referred to in the declaration.
Where the declaration is served on the landlord, a distress on
goods so declared constitutes illegal distress and the goods
can be ordered to be restored [Sec. 26(1) Bdos Act]
Bdos Act defines lodger as ‘every person the renter from any
occupier, not being the owner, of a dwelling house or part
thereof for the purposes of residence only (but doesn’t
include under-tenant for business purposes.)
Things in Use
However, at common law things which are in actual use are
privileged and cannot be distrained at common law since
they may provoke a breach of the peace.
Perishable Goods
At common law, perishable goods, growing crops and sheaves
of corn are immune from distress since it is impossible to
return them in the same condition if the rent in arrear is
paid.
Some statutes have reversed this rule:
- Barbados Act s. 14: Landlord can seize growing crops
as distress for rent.
- In Belize and Guyana the common law rule hasn’t been
reversed by statute.
Statutorily Exempt Goods
Barbados doesn’t list any goods as statutorily exempt goods
Procedure
At common law
- A landlord can levy distress in person without the
necessity of court proceedings or can engage the
services of an agent or bailiff.
- It is not even required that a formal demand should be
made before a distress is levied.
- But distress cannot take place on Sunday, nor between
sunset and sunrise.
Under Statute (Barbados)
- No time limit between which distress can be levied
after rent falls due. So presumably, LL can distrain as
soon as rent falls due.
- Landlord or his agent may levy distress.
- No time set out for levying distress so common law
between sunset and sunrise applies.
Gaining Access into the Premises
Common Law
No force can be used to gain initial entry into the premises
thus an outer door should not be broken to gain entry.
However, once initial entry is gained peaceably, it is
permissible to break down inner doors.
Thompson & Robinson v Facey
- The tenant built a four-apartment house on the demised
premises.
- Tenant occupied 3 of the apartments and sublet the 4th
to Vera Edwards.
- The landlord sought to levy distress against tenant for
non-payment of rent.
- LL’s agent gained access by entering Vera’s apartment
and then forcibly unlocking a door which separated
Vera’s apartment from the other apartments.
- Issue: whether this door was an “inner door” or an
“outer door”.
- Held that it was an inner door, thus entry was lawful.
Bailiff may re-enter by force after having initially entered
peaceably if he was expelled by force by deliberately
excluded by the landlord (Khazanchi v Faircharm Investments Ltd.)
Impounding the Goods
After the goods have been seized, they have to
impounded, meaning to be kept in an enclosed place.
Impounding the goods has the effect of placing the goods in
the custody of the law. Once the goods have been impounded
the tenant does not have the right to interfere with them.
Remedy of “Rescue”
- This gives tenant the right to remove and take away
distrained goods.
- Self-help remedy
- Tenant’s remedy of rescue is limited in 2 respects:
- (i) it can only be exercised before the goods are
impounded.
- (ii) it is only available where distress was illegal or
wrongful – i.e. where there was no right in law to levy
distress
- If distress was legal but merely irregular “rescue”
cannot avail the tenant.
Remedy of “Replevin”
- This is available even after impounding and for goods
which were lawfully distrained.
- However, the court’s intervention is required.
- Replevy means: “to institute court proceedings for an
order for the return of T’s goods which have been
unjustly detained from him.”
- Replevin proceedings made before Magistrate in Bdos.
Sale of Distrained Goods
be No right at common law to sell distrained goods, but the
right is guaranteed by statute.
Barbados LL and T Act
- Goods cannot be sold until 10 days after distress and
service of notice to the tenant of such distress [section
30]
- The sale should be for the best price reasonably
obtainable and the proceeds should be applied towards
the payment of rent and the cost of the distress and
sale.
- The surplus is given to the tenant or the owner of the
goods.
- (A tenant can seek to set-off what is due to him by the
landlord)
Distress after Termination of Tenancy
Common Law
- At common law distress cannot be levied after the
tenancy has been terminated since the remedy of
distress presumes that the landlord and tenant
relationship still exists.
Williams v Stiven
o Rent, accruing before the expiration of a tenancy, cannot be
distrained for after the tenancy expired, even though the tenant
continued in occupation.
o Therefore, where distress for rent in arrear is framed at
common law, it must be alleged and proved that the tenancy
continued up to the time of the distress.
Statute
- Barbados Act – Section 15(1)
- Distress may be levied up to 6 months after the
determination of the tenancy if the landlord continues
to have title to the premises and the tenant remains in
possession.
Removal of Goods to Evade Distress
Barbados Act
- The landlord has the right to pursue and seize goods
fraudulently and secretly removed in order to evade
distress within 30 days of the goods being so removed
(Section 16)
- Where goods have been removed into a dwelling house,
an oath should first be made before a magistrate that
there are reasonable grounds to suspect that such
goods are in the dwelling-house. (Section 19)
- Anyone assisting or privy to the fraudulent removal of
the goods shall forfeit to the landlord double the value
of the goods carried off, to be recovered in any court of
competent jurisdiction (Section 18)
- Must show that the person removed the goods to
avoid the distress
White v Brown
- Tenant relocated with all his personal possessions from
the rented premises to a new location.
- Landlady pursued tenant at his new residence and
distrained upon his good situated there.
- Held: The distress was illegal since the landlady failed
to prove that T removed his goods with a view to
deprive LL of distress remedy.
- There was no evidence that the removal of the goods
was clandestine or fraudulent with a view to elude
distress.
Irregular and Wrongful Distress
Different remedies accrue to the tenant based on whether the
distress was:
(i) Irregular or
(ii) Wrongful / Illegal
Irregular Distress
- This is where distress is legal in that rent is justly due
and in arrears but the procedure adopted to levy the
distress is irregular.
- Examples:
- The impounded goods are sold before the 5 days have
expired.
- An irregular conduct does not make the distress illegal
or a trespass ab initio (s. 28)
Remedies:
- Tenant can bring action against the Landlord for full
satisfaction of any special damages sustained by the
tenant as a result of the distress (Section 28)
Wrongful / Illegal Distress
 -This is distress levied at a time when there is no rent in
arrear in respect of the demised premises.
- The definition may also apply where there is no
landlord and tenant relationship.
Remedies:
- Damages up to twice the value of the rent claimed, plus
costs can be claimed by the tenant against the
distrainor (section 32).
- In her statement of claim which was amended during the trial the
plaintiff alleged wrongful and illegal distraint on the house, which she
claimed as a fixture.
- Held: that in Trinidad and Tobago the remedy given to a landlord by s
8 of the Landlord and Tenant Ordinance to distrain for the recovery of
rent in arrear is the same as given by the law of England in the like
case; accordingly distraint is exigible on goods and chattels but not on
fixtures.

Additional Cases - Plaintiff’s house was held to be a fixture – court applied Mitchell v
Cowie which held that such chattel houses are fixtures since the house
is affixed to the land by tenant for the better enjoyment of the land
Francis v Daley
rather than for the house’s better use as a chattel.
- The appellant levied a distress for rent against each of the respondents,
Carson’s Handout
claiming an amount of £4 owing for rent when in fact only £2 was
owing.
Goods that can’t be distrained on:
- No more goods were seized under the levy than were proportionate to
the amount actually owing for rent.
a. perishable goods
b. loose money (money in bag/chest could be)
- Held: the mere fact that goods were distrained for an amount of rent in
excess of the amount actually due is not per se evidence that the levy
c. animals ferae naturae (wild by nature/not domesticated)
was excessive in the strict sense of the word, and will not give rise to a
cause of action if the goods seized were not disproportionate to the
d. fixtures incl chattel houses
amount of rent actually due.
e. things in actual use
Baptiste v Supersad
f. property delivered to a person carrying on public trade to be dealt with
- The plaintiff's rent being in arrear, the defendant Supersad exercised
in the exercise of his trade
his right to distrain and levied on the plaintiff's house, which was a
building standing on wooden pillars let into the ground.
g. property in custody of law
h. crown/state property

i. property of persons enjoying diplomatic privilege.

Finally, there are certain types of goods, which can be distrained on but
only if there is an insufficiency of other goods able to satisfy the distress.
These are:

- tools of a man’s trade/profession: even though they are not in actual

use
- beasts of the plough; and

- sheep & instruments of husbandry