Less well known than it should be, the old right to recover rent from a tenant known as Distraint (also called Distress) has been a very powerful weapon.

Briefly described, it allows the Landlord, through a duly authorised enforcement agent, to enter peaceably premises subject to a lease in respect of which there are current rent arrears. Having entered, the enforcement officer then seizes (with a view to future sale) any goods of the tenant upon those premises.

No court order is required; no particular agreement or wording in the Lease is required. The right of Distraint attaches to all leases by operation of Law.

Importantly, no notice is required to be given to the tenant; surprise is a powerful weapon.

There are limitations:

• Entry cannot be forced
• An authorised agent must be used
• Only goods at the premises in respect of which rent is due may be seized
• The Lease must still be in existence (i.e. not forfeited, surrendered or otherwise terminated) at the date of entry
• The Landlord bears the agent’s fees but these are recoverable from the sale proceeds of goods actually seized
• Only goods owned by the tenant which can be seized; goods on hire purchase or left with the tenant by a third party cannot be taken

Distraint has been a formidable weapon in the armoury of the Landlord with a defaulting tenant for centuries.

Be warned however. The process of distraint is shortly to be abolished and replaced with a new statutory scheme called “Commercial Rent Arrears Recovery” (CRAR) introduced in the Tribunals, Courts and Enforcement Act 2007.

The new regime is not yet in force but it is only a matter of time before it is.

One obvious downside of the new scheme is that notice must be given to the tenant. One upside is that with appropriate applications to the Court, entry maybe forced.

Given that a tenant on notice of intending seizure may well remove the goods, there is a provision whereby application can be made to the Court for permission to reduce the period of notice or even enter without notice.

Landlords of commercial premises, and of course their professional property managers, will need to be aware of the new scheme preferably before it is in force and sensibly will need to have access to solicitors who understand it and can take the appropriate urgent action.

For further information about CRAR, please feel free to contact me.