The right of distress, also known as “distraint,” (verb: to distrain) is a common law doctrine where the creditor is entitled to seize the debtor’s properties to satisfy the debt owed. In the context of commercial tenancies, it refers to the landlord’s right to seize chattels (goods) on the premises owned by the tenant if the tenant defaults on the lease. Depending on the jurisdiction, the right to distress may be carried out with or without a court order.
In Ontario, a commercial landlord’s right of distress is governed by the Commercial Tenancies Act.* Under this act, the sometimes harsh common law doctrine has been somewhat softened. Various provisions of exemption and modification shelter commercial tenants from losing-it-all. For example, in the absence of fraud, goods and chattels not on the premises when distress is carried out will not be subject to seizure.^ This means that the landlord can’t break into a tenant’s home and start carting out the tenant’s personal belongings to satisfy the rent in arrears.
It’s important to note that in the case of residential tenancies, a landlord’s right to distress has been abolished.** A landlord seeking to recover residential rent owed or to evict a tenant from his or her home for non-payment of rent has to apply before the Landlord and Tenant Board for an order before the recovery and/or eviction can take place.
*R.S.O. 1990, c. L.7
^ss. 47-50
** Residential Tenancies Act, S.O. 2006, c. 17, s. 40
Please Note: This article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. Legislation referred to may have been amended or repealed since the publication of the article.
