(m) “distress” means anything done to exercise (i) a right of a landlord to distrain for unpaid rent. (uu) “writ proceedings” means any action, step or measure authorized by this Act to be taken for the purpose of enforcing a money judgment. What is Distress for Rent The landlord’s right to distrain for unpaid rent is the right to seize and sell the goods located on the rented premises to recover the rent arrears. CEA s. 104 makes the procedure that applies to seizure and sale of personal property in writ proceedings applicable to seizure and sale of goods by a landlord. It also offers priority rules that determine whether the right of distress can be exercised against goods in which a person other than the tenant claims an interest. Priority of a Writ v. Landlord’s Right of Distress Scenario 1: Writ is registered against ED, who is tenant of Landlord. Landlord instructs seizure of goods owned by tenant under distress for arrears of rent. Scenario 2: Writ is registered against ED, who is tenant of Landlord. Enforcement Creditor (EC) instructs seizure of goods in writ proceedings. ED is in arrears in rent due to Landlord when the goods are seized. The common law doctrine of in custodia legis Goods under seizure by the sheriff are “in the custody of the law” and cannot subsequently be seized by another claimant. As between a writ holder and a landlord, the first to seize under the authority of the sheriff will have priority. Unlikely that the default rule (s. 33(2)) will apply, as authority suggests that a right of distress is not an “interest” in the goods against which that right may be exercised A registered writ “binds” goods of an enforcement debtor but does not affect the ownership of the goods. Section 104(b) does not apply Sectio 104(c) means that a landlord has priority over a buyer in writ proceedings Looks like back to the common law “first to seize” ( Circa 1880 Imports Ltd v Antique Photo Parlour Ltd Ratio Priority goes to the first to seize, subject to the Statute of Anne (Pre- CEA decision) Facts Prior to April 1982, Circa obtained a judgement against Antique for $20,650 On April 16, 1982, Circa instructed the sheriff to attend at Antique’s premises and seize under the judgment
(m) “distress” means anything done to exercise (i) a right of a landlord to distrain for unpaid rent. (uu) “writ proceedings” means any action, step or measure authorized by this Act to be taken for the purpose of enforcing a money judgment. What is Distress for Rent The landlord’s right to distrain for unpaid rent is the right to seize and sell the goods located on the rented premises to recover the rent arrears. CEA s. 104 makes the procedure that applies to seizure and sale of personal property in writ proceedings applicable to seizure and sale of goods by a landlord. It also offers priority rules that determine whether the right of distress can be exercised against goods in which a person other than the tenant claims an interest. Priority of a Writ v. Landlord’s Right of Distress Scenario 1: Writ is registered against ED, who is tenant of Landlord. Landlord instructs seizure of goods owned by tenant under distress for arrears of rent. Scenario 2: Writ is registered against ED, who is tenant of Landlord. Enforcement Creditor (EC) instructs seizure of goods in writ proceedings. ED is in arrears in rent due to Landlord when the goods are seized. The common law doctrine of in custodia legis Goods under seizure by the sheriff are “in the custody of the law” and cannot subsequently be seized by another claimant. As between a writ holder and a landlord, the first to seize under the authority of the sheriff will have priority. Unlikely that the default rule (s. 33(2)) will apply, as authority suggests that a right of distress is not an “interest” in the goods against which that right may be exercised A registered writ “binds” goods of an enforcement debtor but does not affect the ownership of the goods. Section 104(b) does not apply Sectio 104(c) means that a landlord has priority over a buyer in writ proceedings Looks like back to the common law “first to seize” ( Circa 1880 Imports Ltd v Antique Photo Parlour Ltd Ratio Priority goes to the first to seize, subject to the Statute of Anne (Pre- CEA decision) Facts Prior to April 1982, Circa obtained a judgement against Antique for $20,650 On April 16, 1982, Circa instructed the sheriff to attend at Antique’s premises and seize under the judgment
60+-+Law+514+JEL+CAN.docx