Landlord-Tenant Distress

Question 1. Allen, Karina & Diane

On 1 January 2020, Lorne granted a monthly tenancy to Terry, a chef, of his apartment in his building situate at James Street at a rent of $4,000 payable in advance. Terry has not paid rent since 1 June 2020. On 6 December 2020, Lorne instructed his friend, Jack, to levy a distress on Terry’s belongings for the outstanding sums. At about 8 o’clock that evening Lorne and Jack entered the building through the lobby door downstairs and went up to Terry’s apartment and Jack broke down the door to the apartment to gain entry. While there he seized the following articles:

i) A commercial stove valued $5000.

ii) A computer which Terry was using at the time to draw up invoices for his clients, valued $4000. (business/trade)

iii) A stereo valued $2000 belonging to Jennifer, a student lodging in the apartment. Jennifer told him that the stereo belonged to her and showed him the receipt for it. Jack took it anyway. (third party property)

iv) A motorbike valued $5000 parked in the street outside the building.

Jack loaded up the items on his truck and left without more. The next morning Terry saw Lorne riding his motorbike in the street and took it back from him (being used for personal purposes). Terry does not know where his other property.

Advise Terry on the following:
(a) the validity of the distress
(b)Lorne and Jack’s liability with respect to the distress and
(c) His own liability with respect to retrieving the motorbike.
(d)What if any remedies are available to him.
(Where necessary, candidates should assume that the lease reserved the remedy of Distress)

Advice to Terry:

Issue 1: Was the distress lawful/valid?

Law: Distress entitles a landlord, where rent is in arrears, to seize the tenant’s goods and chattels found on the premises and to sell them in order to recover the amount of rent owed.

According to Martineau v Harper TT 2012 HC 49. “In order that the right to distrain for rent upon a demise may arise, the relation of landlord and tenant must exist, both when the rent becomes due and when the distress is levied, and the rent must be in arrear”.
Rent will not be in arrears until midnight on the day on which it falls due.Dibble v Bowater (1853) 118 ER 879. If rent is payable in advance it will be in arrears as soon as the period in respect of which it is payable begins:

Distress must be levied between sunset and sunrise and not on a Sunday: Aldenburgh v Peaple (1834) 6 C & P 212. The landlord may levy distress in person or through a bailiff certified by the Registrar of the High Court (Recovery of Rent Act, CAP 54:70, section 5.) Where distress is levied by an uncertificated bailiff, this amounts to an illegal distress, and both the bailiff and the landlord will be deemed to have committed trespass and the trespass is deemed to be trespass ab initio: Recovery of Rent Act, CAP 54:70, section 5(4). According to Perring v Emerson (1906) K.B. 1, where an uncertified bailiff levies distress, and, in so doing, seizes goods upon the demised premises which are the property of a third party, the owner of the goods is entitled to recover damages in respect of the seizure of his goods from the landlord who has authorized the distress.

Where rent is justly due and there is a right to distress, the entry into demised premises for levying distress must be peaceful and effected by the usual means adopted by persons having access to the premises, no force whatsoever being used: American Concentrated Must Corp. v Hendry (1893) 62 L.T.742. Entry therefore, must be through an unlocked door, or where it is locked, by unlocking it in the normal way, that is with its key.The distrainer may not forcibly enter any outer door, or gate of any building being rented by the tenant whatsoever as that will amount to unlawful distress. American Concentrated Must Corp v Hendry (1893) 68 LT 742. The Court of Appeal in Thompson v Facey (1976) 24 WIR 457 established that the test in determining if the door was an outer door is if it served the purpose of protection from the outside world. In that case the court found that the door was an inner door as it served only to provide privacy between the respective occupants of the rooms on either side of the building. The Baliff was therefore, not guilty of an illegal levy by forcibly unlocking the inside door.

The case of Martineau v Harper TT 2012 HC 49 importantantly notes as a general rule that distress can only be made of goods found upon some part of the demised premises out of which the rent issues. Once on the premises out of which the rent issues, under common law, all chattels and goods are distrainable, whether they belong to the defaulting tenant or to a third party: Cox v Boyce (1960) 2 WIR 19. Nonetheless, a third party, particularly a lodger may be exempt from lawful distress once they serve the landlord or the certified bailiff with a declaration that the property is theirs and that if rent is due to the tenant he or she shal pay it to the landlord, and an inventory of the goods … once served with the declaration and inventory, if the landlord or the certified baliff levies or proceeds with distress of the lodgers belongings this will be held as illegal distress. And the magistrate shall order a recovery of goods or otherwise which will seem just. Additionally, as aforementioned, where an uncertified bailiff distrains the property of a third party, the owner of the goods is entitled to recover damages in respect of the seizure of his goods from the landlord who has authorized the distress.
Some items may still be privileged conditilnally or absolutely from distress. Accordingly, Simpson v Hartopp (1744) Willes 512, 125 ER 1295 establishes that Implements of the tenant’s trade are privileged from distress for rent, if they be in actual use at the time, or if there be any other sufficient distress on the premises; but if they be not in actual use, and if there be no other sufficient distress on the premises, then they may be distrained for rent.
However, both the common law and statute protect some chattels with a privilege that may be ‘absolute’ or ‘conditional’, whereby such goods are not distrainable where the privilege is absolute: Cornwall et al v Trincity Commercial Centre Ltd (1996) High Court T&T, No 1437 of 1995. (Did not find this provision in our statute; if you have it please add) Privileged goods include things in actual use; things delivered to a person by way of his trade or business: Simpson v Hartopp [1558-1774] All ER Rep 453 (I think this is the applicable case as Armstrong’s apprentice was using the machine at the time of the distress); Crossley v Lee (1908) 1 KB 56; Cornwall v Trincity Commercial Centre Ltd (supra).

At common law, the distrainor, on completion of the seizure, is required to make an inventory of the goods intended to be included in the distress, and to give notice of the distress to the tenant: JJ Pharmacy Ltd v Parillon Investments Ltd(1988) High Court, Trinidad & Tobago, No 1495 of 1988 (unreported). The goods may be set up for sale by public auction five days after the distress, unless the tenant, before the sale, serves the bailiff with a notice that he desires to replevy the goods: Recovery of Rent Act, CAP 54:70, section 3.

The common law position is that the goods distrained must be kept in a secure place or enclosure, which may be on the demised premises or elsewhere, after they have been seized. The distrainor must not use the goods impounded, since he holds them merely as a pledge, and he is answerable for the condition of the pound, so that if the goods are stolen or damaged, he will be liable: Cotsworth v Betison (1696) 91 ER 965.

Any person who removes the distrained goods from the pound without the distrainor’s consent, and with knowledge of the impounding, commits the tort of pound breach, and is liable for ‘treble damages’ – that is, for three times the value of the goods removed – even where the distress itself was unlawful: Cotsworth v Betison (1696) 91 ER 965. However, if the distrainor himself takes the goods out of the pound for the purpose of using them unlawfully, the owner is entitled to retake possession from the distrainor without being liable for pound breach: Smith v Wright (1861) 158 ER 338.

Excessive distress is one where more goods seized than are reasonably necessary to satisfy the arrears of rent owed and the charges for the distress. The remedy for this action is against the bailiff/landlord for damages. The damages will amount to the value of goods wrongfully seized less arrears of rent and cost of distress.

Application/Conclusion:
The landlord/ tenant relationship is in existence as the agreement took effect on 1 January 2020 and there is no indication as to the contract length, or that notice to quit was served, or that the tenant expressed desire to end the tenancy.

Per the agreement between Lorne and Terry, the $4000.00 rent is payable in advance and accordingly it becomes due at midnight on the first day of each month: Martineau v Harper TT 2012 HC 49. Terry has not paid rent since 1 June 2020, so this means that six months’ rent for the period July to December 2020 is in arrears. Lorne gave instructions for the distress to be levied on Terry’s belongings for the outstanding period, during the period of the landlord/tenant relationship. In the circumstances therefore, the prerequisites to distrain are satisfied and the distress was lawful.

However, Lorne instructed his friend Jack at about 8PM on the 1st of June to distrain Terry’s belongings for the outstanding sum. Accordingly, this distress was not in accordance with the common law position which provides that it must be levied between sunset and sunrise and not on a Sunday: Aldenburgh v Peaple (1834) 6 C & P 212.

Jack is not a certified bailiff and thus was not the proper person to levy the distress for rent: Rent Recovery Act, CAP 54:70, section 5. Thus, the distress was illegal as Jack is Lorne’s friend and not a certified bailiff and both of them will be deemed to have committed trespass ab initio: Recovery of Rent Act CAP 54:70, section 23.

Another consideration is whether Jack and Lorne’s entry into the demised premises was lawful. They entered the building through the lobby door downstairs, which would be in accordance with the basic common law rule that entry must be peaceful and effected by the usual means adopted by persons having access to the premises per American Concentrated Must Corp. v Hendry. However, Jack they subsequently went up to Terry’s apartment and Jack broke down the door to the apartment to gain entry and this would be unlawful as no force whatsoever is to be used: American Concentrated Must Corp. v Hendry and that door was an outer door which served the purpose of protection from the outside world: Thompson v Facey. (I am a bit unsure of this point, because the apartment door is not really protection from the outside world, but rather from the other tenants as in Thompson v Facey a connecting door between two apartments was broken down to distrain; let me know what you all think.

A further consideration is whether more goods were seized than were reasonably necessary to satisfy the arrears of rent owed. The rent was $4000.00 per month and six months’ rent for the period July to December 2020 was in arrears. This amounts to $24, 000.00. The items seized were a commercial stove valued at $5000; a computer valued at $4000.00; astereo valued at $2000.00; a motorbike valued at $5000.00; a total value of $16, 000.00. In the circumstances, the distress was not excessive in so far as its value is not over the amount of rent in arrears.

Jack loaded up the items on his truck and left without more. It is not clear where the items were transported to. However, we can assume that it was not secured because the next morning Terry saw Lorne riding his motorbike in the street and he does not know where his other property. This is a breach of the common law position that goods distrained must be kept in a secure place or enclosure and that the distrainor must not use the goods impounded since he holds them merely as a pledge and he is answerable for the condition of the pound: Cotsworth v Betison (1696) 91 ER 965.

Lorne’s use of the motorbike the next day signals that the goods were not secured, and that it was being used for personal reasons therefore constituting pound breach.

Issue 2: What is Lorne & Jack’s liability regarding the distress?

Law: Irregular/unlawful distress is one where the levy is legal at the start but proceedings subsequent to seizure have been conducted in a wrongful manner.

Where any distress is made for any kind of rent justly due and any irregular or unlawful act is afterwards done by the party distraining or his agent, the distress itself shall not be therefore deemed unlawful nor the party a trespasser ab initio, but the party aggrieved by the unlawful act shall recover full satisfaction for the special damage thereby sustained and no more, but the plaintiff shall not recover in any such action if tender of amends has been made by the party distraining or his agent before the action brought: Rent Recovery Act, CAP 54:70, section 23.
The common law position is that the goods distrained must be kept in a secure place or enclosure, which may be on the demised premises or elsewhere, after they have been seized. The distrainor must not use the goods impounded, since he holds them merely as a pledge, and he is answerable for the condition of the pound, so that if the goods are stolen or damaged, he will be liable: Cotsworth v Betison (1696) 91 ER 965.

Any person who removes the distrained goods from the pound without the distrainor’s consent, and with knowledge of the impounding, commits the tort of pound breach, and is liable for ‘treble damages’ – that is, for three times the value of the goods removed – even where the distress itself was unlawful: Cotsworth v Betison (1696) 91 ER 965. However, if the distrainor himself takes the goods out of the pound for the purpose of using them unlawfully, the owner is entitled to retake possession from the distrainor without being liable for pound breach: Smith v Wright (1861) 158 ER 338.

Thornton v Adams (1816) 5 M. & S. 38: The stat. 11 G-eo. 2, c. 19, empowering landlords to follow goods fraudulently and clandestinely carried off the premises within 30 days, applies to the goods of the tenant only, and not to those of a stranger; wherefore a plea justifying the following goods off the premises, and distraining them for rent arrear, must shew that they were the tenant’s goods.

Application/Conclusion: The distress was legal at its commencement as six months’ rent was in arrears, the landlord tenant relationship existed at the time of the arrears and the relationship continued at the time of the distress.

However, it became irregular/unlawful by virtue of the time at which it was levied (8PM); the manner in which was levied (the door was broken); the person who effected the levy (Lorne’s friend Jack); and that the items were not placed in a secure place as Lorne’s friend was seen the following day using one of the distrained items.

Thus, while Lorne and Jack will not be deemed trespassers ab initio, they will be liable for their unlawful act and the aggrieved party can recover special damage and costs: Rent Recovery Act, CAP 54:70, section 23.

Issue 3: What is Terry’s liability in receiving the motorbike? (bona fide purchaser?)

Law:

Any person who removes the distrained goods from the pound without the distrainor’s consent, and with knowledge of the impounding, commits the tort of pound breach, and is liable for ‘treble damages’ – that is, for three times the value of the goods removed – even where the distress itself was unlawful: Cotsworth v Betison (1696) 91 ER 965. However, if the distrainor himself takes the goods out of the pound for the purpose of using them unlawfully, the owner is entitled to retake possession from the distrainor without being liable for pound breach: Smith v Wright (1861) 158 ER 338.

Thornton v Adams (1816) 5 M. & S. 38: The stat. 11 G-eo. 2, c. 19, empowering landlords to follow goods fraudulently and clandestinely carried off the premises within 30 days, applies to the goods of the tenant only, and not to those of a stranger; wherefore a plea justifying the following goods off the premises, and distraining them for rent arrear, must shew that they were the tenant’s goods.

Issue 4: What remedies are available to Terry?

Law:

Application/Conclusion:

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