In a complex area of property law, the Law of Distress, as amended in 1908, has done a very good job of getting the balance right between the rights of the tenant to occupy the property under the terms of the lease and those of the landlord to send in the bailiffs when rent is in arrears. Yet the actions of a small number of over-zealous bailiffs, under landlord instruction, have set in train a convoluted and bureaucratic process which is reconsidering the rights of both parties.

Antagonising landlords and owners

The Commercial Rent Arrears Recovery (CRAR) regime, enacted under the Tribunals, Courts and Enforcement Act (TCEA) 2007, has never been formally brought into force, and for good reason. Seeking to re-balance the rights of both parties, CRAR has succeeded only in antagonising landlords and owners by proposing to significantly alter the nature of the commercial relationship between landlord and occupier.

The Law of Distress is inherently fair

With a revised Code of Practice for the industry and a few deft tweaks to update the existing Law of Distress, particularly in regard to the period of time between the debt arising and the bailiff entering the premises, the industry ought to be able to police itself, safe in the knowledge that the rights of both parties continue to be protected under an established law which has been well-tested over the years.

The balance afforded by the 1908 Law of Distress is inherently fair and CRAR is an unwelcome and costly distraction.

This article is part of Asset Class winter 2013