DISTRESS FOR RENT ORDINANCE, 1883

DISTRESS FOR RENT ORDINANCE, 1883

No. 1 of 1883.

AnOrdtInance to consolidate and amend the laws relating
to distraints for rent. .
[1st March, 1883.]

1. This Ordinance may be cited as the Distress for Rent
Ordinance, 1883.

2. In this Ordinance,

(a) ' The court ' means the Supreme Court in its summary
jurisdiction.

(b) ' The Registrar ' m eans the Registrar of the Supreme
Court.

PART I.
JURISDICTION.

3. The court shall have jurisdiction to issue warrants of
distress for 'arrears of rent in all cases, without respect to the
value of the property on which the rent is to be levied and without
respect to the amount of rent tobe levied.

4.-(1) No distress shall be levied for arrears of rent except
under the provisions of this Ordinance.

(2) Every person, not being a bailiff or officer acting under

* For landlord's power of distress in bankruptcy see No. 10 of 1931, s. 40.





this Ordinance, who levies or attempts to levy any such distress
shall upon summary conviction be liable to a fine not exceeding
one hundred dollars or to imprisonment for any term not exceed-
ing three months, in addition to any other liability which he
may have incurred by his proceedings.

5.-(1) The bailiffs of the court shall be employed under the
provisions of this Ordinance.

(2) The salaries, allowances, and expenses of the bailiffs and
other officers employed under this Ordinance shall be paid out of
the. general revenue.

6.-(t) All fees collected under this Ordinance for services
by such bailifFs' and officers shall be paid into the general
revenue.

(2) No fees shall be taken or demanded for such distresses
except those set out in the First Schedule.

7. No warrant shall be issued in any case for arrears of rent
due for more than twelve months at the time of the application.

PART II.

MAKING OF DISTRESS.

8. Any person claiming to be entitled to arrears of rent,
or his duly constituted attorney or agent, may apply for such
warrant as is hereinafter mentioned.

9.-(r) A power of attorney to an agent authorized to apply
for warrants of distress may be either general or for the particular
case, and shall be exempt frorn stamp duty, if confined solely
to the urpose of giving authority to distrain for rent under this
Ordinance.

(2) Such power may be in Form. No. 1 in the Second
Schedule or to the like effect.

10.-(1) Every application for a warrant shall be supported
by an affidavit, which may be according to Form No. 2 in the
Second Sche dule or to the like effect.

(2) Such affidavit may be sworn in like manner as other
affidavits in the court.





11. A warrant according to Form No. 3 in the Second
Schedule or to the like effect may be issued by a judge or, in
the absence of any judge from the court house, by the Registrar,
returnable within six days and addressed to any one of the bailiffs
of the court.

12. The judge or Registrar to whom application is made
may, on examination of the person applying for such warrant,
decline to issue the same.

13.-(1) If a judge declines to issue such warrant, applica-
tion may be made to the Full Court as provided in cases under
section 23 of the Supreme Court Ordinance, 1873.

(2) If the Registrar declines to do so, application may be
made to a judge in the first instance. A Deputy Registrar may,
however, refer any application to the Registrar.

14. Every distress shall be made after sunrise and before
sunset, and not at any other time, except by special leave of the
court or a judge.

15. In pursuance of the warrant aforesaid, the bailiff shall
seize the movable property found in or upon the house or
premises mentioned in the warrant, and in the apparent possession
of the person or firm fr,)m whom, the rent is claimed (hereinafter
called the debtor), or such part thereof as may, in the bailiff's
judgment, be sufficient to cover the amount of the rent, together
with the costs of the distress.

.16. The bailiff shall not seize-

(i) things in actual use, in the hands of a person at the
time of seizure; or

(2) tools and implements not in use, where there is other
movable property in or upon the house or premises sufficient to
cover the amount of the r~nt and costs; or
(3) goods of a temporary guest at an inn; or
(4) goods of a lodger at a furnished lodging-house; or

(5) the debtor's necessary wearing apparel'; or
(6) goods in the custody of the law; or

As amended by No. 8 of 1928 [13.7.281.





1 (7) goods delivered to a. person or firm exercising a public
trade, to. be carried, wrought, worked up, or managed in the
way of the trade or employ of such person or firm.

17. On seizing any property under section 15, the bailiff
shall make an jnventory and, appraisement of such property, and
shall give a copy of such inventory and appraisement and notice
in writing, according to Form No. 4 in the Second Schedule or
to the like effect, to the debtor or to any other person on his
behalf, in or upon the said house or premises.

18. The bailiff shall, as soon as may be, file in the court
copies of the said inventory, appraisement, and notice.

19.-(1) Any bailiff or officer appointed to execute a distress
warrant may break open inner doors.

(2) If he is denied admittance to any building as to which
he has a warrant to distrain, after declaring his name and
business, or if, after waiting a reasonable time, no person
answers or is in the building, he may apply to the court for
authority to break open outer doors and windows, so far as may
be necessary to enable him to execute the warrant.

(3) The court, on being satisfied, by the affidavit of the
bailiff or officer, that there are no reasonable means of'executing
the warrant without breaking open such outer doors or windows,
may grant an order in writing, addressed to a bailiff of the
court, authorizing him to break open, or have broken open,
such doors and windows.

(4) Before executing such order, however, the bailiff shall
inform any person in or about the building that he has such
order and that he is about to act on it, unless* the doors
or windows are opened.

20. The bailiff may impound or otherwise secure the property
seized in or on the house or premises chargeable with the rent or
may remove the same.

PART III.

DiSCHARGE OF AND COMPENSATION FOR

WRONGFUL DISTRESS.

21. The debtor, or any other person alleging himself to be





the owner of any property seized under this Ordinance, may,
at any time within five days from such seizure, on twenty-four
hours' notice to the person who obtained the warrant and to the
bailiff, setting out the facts on which the claim is founded, verified
1JY affidavit, apply to the court to discharge or suspend the
warrant or to release a distrained article; and the court may
discharge or suspend such warrant or release such articfe
accordingly, on such terms as it may think just.

22. On any such application, the costs attending it and
attending the issue and execution of the warrant shall be in the
discretion of the court, and shall be paid as the court directs.

23. If any claim is made to or in respect of any property
seized under a distress warrant, or in respect of the proceeds
or value thereof, by any person not being the debtor, the
Registrar, on. the application of the bailiff who seized the
property, may issue a summons calling before the court the
claimant and the person who obtained the warrant, and thereupon
any action which may have been brought in respect of such claim
shall be stayed, and the court, on proof of the service of such
summons and that the property was so distrained, may order the
plaintiff to pay the costs of all proceedings in such action after
the service of such summons.

24.-(1 ) Every such claim shall be verified by affidavit
setting out the facts on which it is founded.

(2) When so verified the court shall adjudicate thereupon,
and make such order between the parties in respect thereof, and
of the coss of the proceedings, as it thinks fit.

(3) Such order shall be enforced as if it were an order made
in an action brought in the court.

25.-(1) In any case under section 21 or section 23, the
court may, if a claim has been made therefor at the time of
application, and if it appears to the court that the landlord or
bailiff had no reasonable ground for believing' that the goods
were properly distrainable, award such compensation by way
of damages to the applicant or claimant, as the case may be,, as
the court thinks fit, and may for that purpose make any inquiry
it thinks necessary.





(2) The order of the court awarding or refusing such
compensation shall bar any action in respect of injury caused
by the distress.

26. The court may, at any time, on the application of the
debtor and on reasonable notice being given of the application
to the person who obtained the warrant, give time to the debtor
to pay.the rent due from him, on such terms as it may think
just and reasonable.

PART IV.

SALE OF'DISTRESS.
27-(1) In default of any order to the contrary, the dis-
trained property shall be sold on the day mentioned in the
notice of appraisement and sale hereinbefore referred to, and
such sale shall be conducted at such place and time and by
such person as the Registrar may direct, whether by an
auctioneer or by a bailiff of the court.

(2) The auctioneer or bailiff shall, on realizing the proceeds,
pay o,ver,the amount thereof to the court, and such amount shall
be applied first in paymedt of the costs of the distress, and then
in satisfaction of the debt; and the surplus, if any,. shall be
returned to the debtor.

28. Provided that the debtor may require that the sale
shall take place in any other manner than that directed by the
Registrar, on giving security for any extra costs or loss thereby,
or that, in the opinion of the Registrar, may be thereby
occasioned.

PART V.

DFsERTED PREIMISES.
29.-(1). Where any immovable property is held at a rack
rent, or where the rent reserved is full three-fourths of the yearly
value of the demised premises, and where neither the value of
the premises by the year, nor the rent payable in sespect of the
tenancy by the year, exceeds three hundred dollars, if the tenant
is in arrears for two months and deserts the demised premises
and leaves the same uncultivated or unoccupied, so as no sufficient
distress can be had to countervail the arrears of rent, it shall
be lawful for the court ' at the request of the lessor or landlord
or his agent and on information upon oath, to issue-its warrant





authorizing any bailiff to enter on the premises, breaking any
doors, windows, or gates, if necessary ; and, if the premises are
found to be deserted with no sufficient distress therein, to place
the same in charge of a bailiff and to affix a notice thereon, in
a conspicuous place, that, unless cause to the contrary is shown
before the court within ten days, the premises will be given over
to the applicant.
(2) If no such cause is shown, it shall be lawful for the
court, on proof of the fact of desertion, of non-payment of at
least two months' rent last due, of want of sufficient distress,, and
that the applicant is the lessor or landlord of the premises or
entitled under this Ordinance to a distress warrant, to make an
order directing a bailiff to put the applicant in possession of the
premises, and the demise shall become void.

PART VI.

RULES AS TO'DISTRESS.

30. Arrears of rent may be distrained for after the end or
determination of any term or lease at will, in the same manner
as if such term or lease had not been ended or determined.
Provided that such distress is made during the continuance of the
possession of the tenant from whom such arrears became due.

31. No personal property shall be removed from any premises
under any writ from any court, other than writs in Crown suits,
until the claim for rent due to the landlord or lessor or person
entitled to receive the rent is satisfied: Provided that such claim
shall not in any case exceed the amount due for six months' rent
last due.

32.-(1) If personal property, otherwise liable to distress for'
rent, is, at the time of the issue of any distress warrant or there-
after before seizure by the bailiff under such warrant, seized under
any writ or warrant of the Supreme Court, the said bailiff shall
not seize such personal property, but shall return the warrant
into court and deliver copies thereof to the execution creditor or
his agent and to the debtor,. either personally or by leaving the
same at the place where the goods were seized.
(2) Such execution creditor or debtor or either of them may
apply to the court to discharge or suspend the warrant within the
time and in the manner mentioned in section 21, and if no stich

Commonly printed as Chapter XIV.





application is mader within the said time, the Registrar shall,
out of the, first money to be received by him from the' officer
executing such writ or warrant, pay over to the person obtaining
such distress warrant the amount thereof: Provided that if the
amount mentioned in the distress warrant exceeds the amount
due for six months' rent, the Registrar shall pay the amount of
rent due for six months and the costs and no more.

33. If any execution is paid off after the issue of a distress
warrant, the bailiff shall immediately execute the distress
warrant.

34. The following persons may, either personally or by
their attorneys or agents, apply for warrants to distrain for
arrears of rent due to the estates represented by them; that is
to say:-

(i) executors or administrators of any lessor or landlord or
.person entitled to receive rents;
(2) guardians for infants
(3) committees of lunatics for the lunatics;
(4) receivers appointed by courts for the estate over or for
which they are appointed;

(5) assignees and trustees in bankruptcy for the estate of the
bankrupt;
(6) mortgagees for the property mortgaged, if the mortgagee
is in possession ;
(7) trustees for the estate over which the trust extends;

(8) lessees against their underlessees; .

(9) the Registrar for premises seized under execution, -if
rented to tenants by the person against whom the execution is
issued, or otherwise rented so that the rent is payable to such
person; and
(io) married women ` with or without the concurrence of
their husbands, for arrears of rent due on property held by them
to their sole and separate Use.

35. Where a right to distrain accrues to parties jointly
interested or together interested in any premises, such as
coparceners, joint tenants, tenants in common, executors,
administrators, trustees, guardians, partners, 6r otherwise, pro-





ceedings under this Ordinance may be taken by any one of
such parties, in his own name and the. name or names of those
jointly or tog ether interested with him, and the levying of rent so
distrained for shall be a complete discharge to the tenant for the
rent or for so much thereof as may be so levied; and the party
so levying shall be liable to account to the parties having the
interest jointly or together ivith him for all sums so levied
Provided that if, in any particular case, it appea~rs to the court
or to the Registrar to be advisable to do so, ihe court or the
Registrar may require the party so applying to produce a written
authority to distrain, signed by on 1 c or more of the persons jointly
or together interested with 111111.

36. No property found at. the time of distraint in or on any
premises as to which an arrear of rent is due shall be removed
from such premises without the consent of the person issuing the
distress warrant, or by direction of the Registrar, until satis-
faction is made for the rent due, if the arrear has accrued during
the current tenancy, and if at any time such property would
have been liable to distraint for rent, under this Ordinance; and
the landlord or lessor shall he entitled to require the bailiff, on
giving such baili ff a sufficient indemnity, to the satisfaction of
the Registrar, to follow the property, if remo ved, and seize the
same under the distress warrant, whether or not such property
was afterwards disposed of by the owner by way of sale,
exchange, mortgage, pledge, or otherwise.

37. If the tenant or lessec or person in possession or
occupation of any premises on which there is an arrear.of rent
due, recoverable by distress, removes or carries away, or causes
or permits to be removed or carried away, from the premises
any movable property liable to be seized for such rent, so as
to prevent or hinder the bailiff from distraining the same, it
shall be lawful for the court, on application verified by affidavit,
to authorize the bailiff to whom the warrant of distress to distrain
for the rent on such premises is addressed, and the officers acting
with him, to follow and to take and seize such property as a
distress for the said arrears of rent, wherever the same may be
found, at any time within thirty days from the day of its removal,
exclusive of the day of removal, and to deal with the property
so removed in the same way as if it had been found on the
premises, and, if advisable to do so, to place the same again
in the premises: Provided that it shall be, lawful for the bailiff.





without such authority, to follow and seize any such property
found by him in the act of being removed from any such
premises, and before the same is placed in any other house or
building.

38. If such property or any part thereof so removed or
carried away under the circumstances mentioned in sections
36 and 37 has been sold bond fide and for a sufficient considera-
tion, before or after removal from the premises distrained, to any
person not knowing and not having the means of knowing that
the same was liable to distraint for rent, or wa~ removed or
carried awav, or was to be removed, or carried away, so as to
prevent or hinder the landlord or lessee from distraining, the
same, or so much thereof as has been so sold, shall be restored
by the bailiff distraining or by the coiirt on application under
section 21.

39. Every tenant or lessee or person in possession or
occupation who fraudulently removes or carries away movable
property as aforesaid, and every person who wilfully and
knowingly aids or assists such tenant or lessee or person
in such fraudulent removal or carrying away, shall be deemed
to be guilty of a misdemeanor.

40. The provisions of this Ordinance shall extend to New
Kowloon, notwithstanding anything to the contrary contained in
the New Territories Regulation Ordinance, igio.

41. Where any distress is made for any 1 sum of money to
be levied by virtue of this Ordinance, the distress itself shall
not be deemed unlawful, nor the party making the same be
deemed a trespasser, on account of any defect or want of forn,
in the proceeding relating thereto, nor shall the party distraining
be deemed a trespasser from the beginning on account of any
irregularity which may afterwards be committed by the party
so distraining, but the person aggrieved by such irregularity may
recover satisfaction for the special damages in an action as
provided by SCCti0112,5.

As arnended by No. 8 of 19M [13.7.2B].





42. Nothing in this Ordinance shall be held to apply to
rents due to the Crown.

43. It shall be lawful for the Governor in Council to amend
the Schedules in any manner whatsoever.

FIRST SCHEDULE.

TABLE OF FEES TO BE LEVMD IN DiSTRAINTS FOR RENT. [S. 6.]

Affidavit, War- Order to
Sum sued for. rent to distrain, Cemmission.
sell.
0 Ce, etc.

5 1 and under 5 5 ........ 02-5 ---80.25
5 do. 10 .............. i 1.00 0.50
10 do.........20 2.00 1.00
20 do.........30 3.00 1 bo
30 do....40 .......... 4.00 2Z
40 do.........50 5.00 C 2.bO
50 do.........75 6.00 ,j 1 3.75
75 do.........100 ......... 7.50 Cq 5.00
100 do........250 10.00 $1 for every
250 do....500 ......... ........ 15.00 $20 or part
500 and above 15,00 {of $20.

The above scale is intended to include all expenses, except in
actions where the tenant disputes th * el landlord's claim, and witnesses
have to be subpoenaed, in which case each subpcena must be paid
for at 25 cents; where watchmen are kept in charge of property
distrained, $1.00 per day must be paid per man; where property
is removed and stored, the necessary expenses, to be fixed by the
Registrar, must be paid.

SECOND SCHEDULE.

FoRm No. 1.
Power of attorney to distrain.
1 [or We], A.B. do hereby authorize C.D. to be my [or our]
agent to act for me [or us] in distraining under the Distress for
Rent Ordinance, 1883, for [all] the arrears of rent now due to rn-e
[or usI (o~ to be hereafter due) on property situate in [here describe
the property], as to which I am [or we are] entitled to distrain as
Owner, [or lessee, trustee, guardian, etc . 1 alone [or together with
-'.F,] etc.
Dated the day of 19
(Signed) A. B.

t As amended by No. 17 of I' [25.10.29l.
As amended by G.N. 414 of 1933 [1.7.331. For distraint fees in the
New Territories 8ee the regulations under No. 34 of 1910,





FORM No. 2. Is. 10.1

Affidavit in support of application for varrant of distress.

HONG RONG.

In the Snpreme Com-t, Summary Jurisdiction.

A.B., Pla?7it~ff.

V.

C.D., Defendant.

1, A.B,, an inhabitant ofmake onth and say that
0. D., of 1 is justly indebted toin the surn of
$ for arrears of rent of the house and premises N1o.
situate at in the due for
months, to wit, from the day of 1
19 to the day of 19 at the rate oi
per mensem.
(Signed) A. B.
Sworn before me
at
on the day of

19 (Signed.)

FORM -NO. 3.

Warrant of distress.

HO-,G KONG.

In the Supreine Court, Summary Jurisdiction.

To E.F., Badilf ~~f the court.

1 hereby direct you to distrain the goods and chattels on the
premises of C.D. situate at in the
for the sum of $ bein- the amount ofmonths' rent
due to A.B. for the same on the. day of v
19according to the provisions of the Distress for Rent Ordinance,
i883.

Before proceeding to distrain under this warrant, you shall demand
payment of the amount indorsed hereon.

Dated the day of

(Signed)

FORM NO. 4. [s. 17.]
Inventory, appraisement, and notice.
HONG HONG.
In the Supreme Court, Summary Jurisdiction.
To C.D.
Take notice that I have this (jay seized the goods and chattels
contained in the above inventory and appraisement, for the sum of
$ being the aniount ofinkniths' rent due to A.B.
on the day of ,19 ,and that unless
you pay that amount, together with the costs of this distress
within five days from the date thereof or obtain an order from
the court to the contrary, the same will be sold on the day ot
19 , pursuant to the provisions of the Distress
for Rent Ordinance, 1883.
Dated the day of 19

(Signed) E.F.
[Originally No. 1 of 1883. No. 8 of 1928. No. 17 of 1929.] Short title. Interpretation. Issuing of warrants of distress. Punishment of unauthorized person levying distress. Employment and payment of bailiffs. Fees. First Schedule. Limitation of time for issue of warrant. Application for warrant. Form of power of attorney. Second Schedule. Form No. 1 Form of affidavit. Second Schedule. Form No. 2. Form and issue of warrant. Second Schedule Form No. 3. Refusal of warrant. Appeal from refusal. Ordinance No. 3 of 1873. Time for making distress. Property liable to seizure. Property not liable to seizure. Making of inventory on seizure. Second Schedule. Form No. 4. Filing of inventory, etc. Entry, and forcible entry. Impounding of property seized. Discharge or suspension of warrant or release of distress. Costs of application. Wrongful distress. Adjudication in case of wrongful distress. Compensation for wrongful distress. Power to allow time for payment of rent. Mode of sale of distress. [cf. Ss. 17 & 18, ante.] Right of debtor as to manner of sale. Case of deserted premises, where no distress left [cf. 11 Geo. 2, c. 19, s. 16 and 57 Geo. 3, c. 52.] Distress for arrears of rent on determination of lease. Priority of landlord's right over writs, except in Crown suits. [cf. 8 Anne c. 18.*] Property seized under writ or warrant of Supreme Court. Distraint after satisfaction of execution. Persons allowed to apply for distress warrant. Right of one of several parties interested to institute proceedings. Removal of property under distraint. Following property liable to seizure and removed. Restoration of property removed bat bond fide sold. Fraudulent removal of property by tenant. [cf. No. 1 of 1898, s. 5.] Application of Ordinance. Ordinance No. 34 of 1910. [q.v.s.24.] Protection against irregularity in proceedings. Exclusion of Crown rents. [cf. No. 6 of 1875.] Power to amend Schedules.

[Originally No. 1 of 1883. No. 8 of 1928. No. 17 of 1929.] Short title. Interpretation. Issuing of warrants of distress. Punishment of unauthorized person levying distress. Employment and payment of bailiffs. Fees. First Schedule. Limitation of time for issue of warrant. Application for warrant. Form of power of attorney. Second Schedule. Form No. 1 Form of affidavit. Second Schedule. Form No. 2. Form and issue of warrant. Second Schedule Form No. 3. Refusal of warrant. Appeal from refusal. Ordinance No. 3 of 1873. Time for making distress. Property liable to seizure. Property not liable to seizure. Making of inventory on seizure. Second Schedule. Form No. 4. Filing of inventory, etc. Entry, and forcible entry. Impounding of property seized. Discharge or suspension of warrant or release of distress. Costs of application. Wrongful distress. Adjudication in case of wrongful distress. Compensation for wrongful distress. Power to allow time for payment of rent. Mode of sale of distress. [cf. Ss. 17 & 18, ante.] Right of debtor as to manner of sale. Case of deserted premises, where no distress left [cf. 11 Geo. 2, c. 19, s. 16 and 57 Geo. 3, c. 52.] Distress for arrears of rent on determination of lease. Priority of landlord's right over writs, except in Crown suits. [cf. 8 Anne c. 18.*] Property seized under writ or warrant of Supreme Court. Distraint after satisfaction of execution. Persons allowed to apply for distress warrant. Right of one of several parties interested to institute proceedings. Removal of property under distraint. Following property liable to seizure and removed. Restoration of property removed bat bond fide sold. Fraudulent removal of property by tenant. [cf. No. 1 of 1898, s. 5.] Application of Ordinance. Ordinance No. 34 of 1910. [q.v.s.24.] Protection against irregularity in proceedings. Exclusion of Crown rents. [cf. No. 6 of 1875.] Power to amend Schedules.

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