Distraint describes the legal right of a landlord to seize a tenant’s possessions and belongings in the property in question for accumulated rental arrears.
While the law provides certain protection towards the rights of tenants, not paying for rental that should be rightfully paid to landlords is viewed in bad light.
Landlords willingly rent out real estate for the tenants use in exchange for rental.
And when tenants do not pay the obligated rentals that are specified in lease agreements, landlords would be incurring the opportunity costs of renting the units to other tenants.
Not paying rental is not just a breach of contract, but also acting in bad faith.
Sometimes also know as distress of rent due or landlord’s warrant, exercising the right of distraint is most often observed in commercial relationships between landlords and commercial tenants.
When a landlord and tenant is not able to settle the rents in arrears via negotiation, the landlord can apply for a writ of distress (or warrant of distress) from the court.
When this court order is issued, appointed sheriffs would go to the location to seize goods of value.
This happens very quickly because if a retail shop for example finds out about the writ of distress, store employees can quickly move their inventory out of the premises to prevent them from being seized by officials.
If a retailer is able to successfully move their stocks out of the premises before having them repossessed, then the landlord would not benefit from distraint.
Cases in the past actually show that landlords might not have a responsibility to inform tenants of their intention to obtain a court order for distraint.
This would depend on circumstances on a case-by-case basis.
It must be noted that rules of distraint for residential property and commercial property can differ too.
Whether one is a landlord or tenant who is predicting potential legal distraint action, it goes without saying that he or she should seek the expertise of a lawyer to determine the best course of action while staying within the legal limits of the law.
