DISTRESS FOR RENT ORDINANCE

DISTRESS FOR RENT ORDINANCE

CHAPTER 7.
DISTRESS FOR RENT ORDINANCE.

ARRANGEMENT OF SECTIONS.
Section ...................Page

1. Short title .............................. ... ... ... ... ... 257
2. Interpretation........................... ... ... ... ... ... ... 257

Part I-JURISDICTION.

3. Issuing of warrants of distress ............ ... ... ... 257
4. Punishment of unauthorized person levying distress ... 257

5. Employment and payment. of bailiffs ........ ... ... 257
6. Fees .. . ............................... ... ... ... ... ... 257

7. Limitation of time for issue of warrant ... ... ... ... 258

Part II-MAKING OF DISTRESS.

8. Application for warrant ................. ... ... ... 258
9. Form of power of attorney ............... .... ... ... ... 258
10. Form of affidavit ...................... ... ... ... ... ... 258
11. Issue of warrant ....................... ... ... ... ... ... 258
12. Refusal of warrant ..................... ... ... ... ... ... 258
13. Appeal from refusal ....................... ... ... ... 258

14. Time for making distress................... ... ... ... ... 258
15. Property liable to seizure................. ... ... ... ... ... 259
16. Property not liable to seizure ............ ... ... ... ... 259
17. Making of inventory on seizure ............ ... ... ... ... 259
18. Filing of inventory, etc . ............. ... .... ... ... ... 259
19. Entry, and forcible entry .. ........ . ... ... ... ... 259
20. Impounding of property seized .......... ... ... ... ... 260

Part III-DISCHARGE OF AND COMPENSATION
FOR WRONGFUL DISTRESS.
21. Discharge or suspension of warrant or releasj of distress 260
22. Costs of application ................... ... ... ... ... ... 260
23. Wrongful distress ............ ......... ... ... ... ... 260
24. Adjudication in case of wrongful distress ... ... ... 261

25. Compensation for wrongful distress ..... ... ... ... ... 261
26. Power to allow time for payment of rent... ... ... ... 261





Section Part IV-SALE OF DISTRESS. Page

27. Mode of sale of distress ............... ... ... 261
28. Right of debtor as to manner of sale ... ... ... ... 262

Part V-DESERTED PREMISES.

29. Case of deserted premises, where no distress left ... 262

Part VL-RULES AS TO DISTRESS.

30. Distress for arrears of rent on determination of lease ... 263
31. Priority of landlord's right ........... ... ... ... ... 263
32. Property seized under writ or warrant of Supreme Court 263
33. Distraint after satisfaction of execution ... ... ... ... 264
34. Persons allowed to apply for distress warrant ... ... 264
35. Right of one of several parties to institute proceedings 264
36. Removal of property under distraint .... ... ... ... ... 265
37. Following property liable to seizure and removed ... ... 265
38. Restoration of property removed but bona fide sold ... 265
39. Fraudulent removal of property by tenant ... ... ... 266
40. Application of Ordinance ............... ... ... ... 266
41. Protection against irregularity in proceedings ... ... ... 266
42. Exclusion of Crown rents ............... ... ... ... ... 266
43. Power to amend Schedules ............... ... ... ... ... 266

SCHEDULES.

First Schedule-Fees .................. ... ... ... ... 267
Second Schedule-Forms................. ... ... ... ... 267





CHAPTER 7.

DISTRESS FOR RENT.

To consolidate and antend the laws relating to distraints
for rent.

[ist March, 1883.1

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

2. In this Ordinance-

'court' means the Supreme Court in its summary jurisdiction;
'Registrar' means 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 to be levied.

4. (1) No distress shall be levied for arrears of rent
except under the provisions of this Ordinance.
(2) Any person, not being a bailiff or officer acting.
under this Ordinance, who levies or attempts to levy any
such distress shall upon summary conviction be liable to a
fine of five hundred dollars or to imprisonment for 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. (1) 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. 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 from stamp duty, if
confined solely to the purpose of giving authority to distrain
for rent under this Ordinance.

10. Every application for a warrant shall be supported
by an affidavit, sworn in like manner as other affidavits in
the court.

11. A warrant 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,
application may be made to the Full Court as provided in
cases under se~tion 28 of the Supreme Court Ordinance.

(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 from whom the rent is
claimed (hereinafter called the debtor), or such part thereof
as may in the bailiff's judgement, be sufficient to cover the
amount of the rent, together with the costs of the distress.

16. The bailiff shall not seize -
(a) things in actual use, in the hands of a person at
the time of seizure; or
(b) tool and implements not in use, where there is
other movable property in or upon the house or
premises sufficient to over the amount of the rent
and costs; or
(c) good of a temporary guest at an inn; or
(d) goods of a lodger at a furnished lodging-house; or
(f) goods in the custody of the law; or
(g) good 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 dny property under section iS, the
bailiff shall make an inventory and appraisement of such
property, and shall give a copy of such inventory and
appraisement and notice in writing, 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 war-
rant.

(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 break-ing 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 lie. 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 by 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 war-
rant or release such article 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 there-
upon, and make such order between the parties in respect
thereof, and of the costs of the proceedings, as it thinks lit.

(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 23, the court
may, if a claim has been made therefor at the time of applica-
tion, 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 sliall 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.

MODE OF SALE OF DISTRESS.

27. (1) In default of any order to the contrary, the
distrained 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 over the amount thereof to the court, and
such amount shall be applied first in payment 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. The debtor may require that the sale shall take
place in any other manner than that directed by the Regis-
trar, on giving security for any extra costs or loss thereby,
or that, in the opinion of the Registrar, may be thereby
occasioned.

PART V.

DESERTED PREMISES.

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 respect 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 war-
rant 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 thereafter 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 creditior 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 war-
rant within the time and in the manner mentioned in section
21, and if no such application is made 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-
(a)executors or administrators of any lessor or land-
lord or person entitled to receive rents;
(b) guardians for infants ;
(c) committees of lunatics for the lunatics;
(d)receivers appointed by courts for the estate over
or for which they are appointed;
(e)assignees and trustees in bankruptcy for the estate
of the bankrupt;
mortgagees for the property mortgaged, if the
mortgagee is in possession;
(g) trustees for the estate over which the trust extends;
(h) to lessees against their underlessees;
(i)the Registrar for premises seized under execution,
if rented to tenants by the person against whorn
the execution is issued, or otherwise rented so diat
the rent is payable to such person ; and
married women, with or without the concurrence
of their husbands, for arrears of rent due on pro-
perty held by them to their sole and separate use.

35. Where a right to distrain accrues to parties jointly
interested or together i~terested in any premises, such as
coparceners, joint tenants, tenants in common, executors,
administrators, trustees, guardians, partners, or otherwise,
proceedings 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 together interested with him, and the
levying of rent so distrained for shall be a complete dis-
charge 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 with him for all sums so levied: Provided
that if, in any particular case, it appears to the court or
to the Registrar to be advisable to do so, the court or





the Registrar may require the party so applying to produce
a written authority to distrain, signed by one or more of
the persons jointly or together interested with him.

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 satisfaction 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 dis-
traint for rent under this Ordinance ; and the landlord or
lessor shall be entitled to require the bailiff, on giving such
bailiff a sufficient indemnity, to the satisfaction of the
Registrar, to follow the property, if removed, and seize the
same under the distress warrant, whether or not such pro-
perty was afterwards disposed of by the owner by way of
sale, exchange, mortgage, pledge, or otherwise.

37. If the tenant or lessee 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 prernis es any movable property liable to be seized for
such rent, so as to prevent or hinder the bailiff from dis-
training the same, it shall be lawful for the court, on
application verified by affidavit, to authorize the bailiff. to
whoin 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 bona fide and for a suffi-
cient consideration, 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 was removed or carried away, 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 court on application under
section 21.

39. Any tenant or lessee or person in possession or
occupation who fraudulently removes or carries away
movable property as aforesaid, and any person who wil-
fully 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 and to any other land exempted from Part
II of the New Territories Ordinance, notwithstanding any-
thing contained in that Ordinance.

41. Where any distress is made for any 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 form in the proceeding relating thereto, nor shall
the party distraining be deemed a trespasser from the
beginning on account of any irregularity which may after-
wards be committed by the party so distraining, but the
person aggrieved by such irregularity may recover satisfac-
tion for the special damages in an action as provided by
section 25.

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.

The above scale is intended to include all expenses, except in
actions where the tenant disputes the landlord's claim, and witnesses
have to be subpoenaed, in which case each subpoena must be paid
for at 25 cents; where watchmen are kept in charge of property
distrained, $4.00 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 1. [S. 9.]
Power of attorney to distrain.
I [or Wel, 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 (Chapter 7 of the Revised Edition) for [a.ll] the
arrears of rent now due to me for us] (or to be hereafter due) on
property situate in [here describe the property], as to which 1 am
[or we are] entitled to distrain as owner, [or lessee, trustee,
guardian, etc.] alone for together with E.F.] etc.
Dated the day of 19

(Signed) A.B.

FORm 2. [s. 10.]
Affidavit in support of application for warrant of distress.
HONG KONG
In the Supreme Court, Summary Jurisdiction
A.B., Plaintiff.
V.
C.D., Defendant.





I, A.B., an inhabitant of , make oath and say that
C.D., of , is justly indebted toin the sum of
$ for arrears of rent of the house and premises No.
situate at in the due for
months, to wit, from the day of p
19 to the day of 19 at the rate of
per mensem.
(Signed) A.B.
Sworn before me
at on the day of
19 Signed

FORm 3. Is. 11.]

Warrant of distress.
HONG KONG
In the Supreme Court, Summary Jurisdiction
To E.F., Bailiff of the court.
I hereby direct you to distrain the goods and chattels on the
premises of C.D. situate at in the
for the sum of $ being the amount of months' rent
due to A.B. for the same on the day of 1
19, according to the provisions of the Distress for Rent Ordinance
(Chapter 7 of the Revised ~dition).
Before proceeding to distrain under this warrant, you shall
demand payment of the amount indorsed hereon.

Dated the day of 19

[L.S.] (Signed)

FORm 4. 17.

Inventory, appraisement, and notice.

HONG KONG
In the Supreme Court, Summary Jurisdiction
To C.D.
Take notice that I have this day seized the goods and chattels
contained in the above inventory and appraisement, for the sum of
$ being the amount ofmonths' 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 of
' 19 , pursuant to the provisions of the Distress
for Rent Ordinance (Chapter 7 of the Revised Edition).

Dated the day of 19

, (Signed) E.F.
Originally 1 of 1883. Fraser. 1 of 1883. 9 of 1950. 22 of 1950. Short title. Interpretation. Issuing of warrants of distress. Punishment of unauthorized person levying distress. 22 of 1950. Schedule. Employment and payment of bailiffs. Fees. [s. 6 cont.] First Schedule. Limitation of time for issue of warrant. Application for warrant. Form of power of attorney. Second Schedule Form 1. Form of affidavit. Second Schedule Form 2. Issue of warrant. Second Schedule Form 3. Refusal of warrant. Appeal from refusal. (Cap. 4). Time for making distress. Property liable to seizure. Property not liable to seizure. Making of inventory on seizure. Second Schedule. Form 4. Filing of inventory, etc. entry, and forcible entry. [s. 19 cont.] 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. [s. 27 cont.] Right of debtor as to manner of sale. Case of deserted premises, where no distress left. [cf. 11 Geo. 2, c. 19, ss. 16 and 57 Geo. 3, c. 52.] Distress for arrears of rent on determination of lease. Priority of landlords right. [cf. 8 Anne c. 18 perh. C. 14.] Property seized under writ or warrant of Supreme Court. Distrait 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 distrait. Following property liable to seizure and removed. Restoration of property removed but bona fide sold. [s. 38 cont.] Fraudulent removal of property by tenant. Application of Ordinance. 9 of 1950. Schedule. (Cap. 97.) Protection against irregularity in proceedings. Exclusion of Crown rents. Power to amend Schedules. G.N. 185/47.

Originally 1 of 1883. Fraser. 1 of 1883. 9 of 1950. 22 of 1950. Short title. Interpretation. Issuing of warrants of distress. Punishment of unauthorized person levying distress. 22 of 1950. Schedule. Employment and payment of bailiffs. Fees. [s. 6 cont.] First Schedule. Limitation of time for issue of warrant. Application for warrant. Form of power of attorney. Second Schedule Form 1. Form of affidavit. Second Schedule Form 2. Issue of warrant. Second Schedule Form 3. Refusal of warrant. Appeal from refusal. (Cap. 4). Time for making distress. Property liable to seizure. Property not liable to seizure. Making of inventory on seizure. Second Schedule. Form 4. Filing of inventory, etc. entry, and forcible entry. [s. 19 cont.] 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. [s. 27 cont.] Right of debtor as to manner of sale. Case of deserted premises, where no distress left. [cf. 11 Geo. 2, c. 19, ss. 16 and 57 Geo. 3, c. 52.] Distress for arrears of rent on determination of lease. Priority of landlords right. [cf. 8 Anne c. 18 perh. C. 14.] Property seized under writ or warrant of Supreme Court. Distrait 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 distrait. Following property liable to seizure and removed. Restoration of property removed but bona fide sold. [s. 38 cont.] Fraudulent removal of property by tenant. Application of Ordinance. 9 of 1950. Schedule. (Cap. 97.) Protection against irregularity in proceedings. Exclusion of Crown rents. Power to amend Schedules. G.N. 185/47.

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