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Khazanchi & another v Faircharm Investments Ltd & another, Court of Appeal - Civil Division, March 17, 1998, [1998] 1 WLR 1603,[1998] 2 All ER 901,[1998] EWCA Civ 471
This case concerned the rights of enforcement agents with valid pre-existing levies to force re-entry to premises for the purposes of removal. In the case of Khazanchi the bailiff enforcing rent arrears forced re-entry when both of the tenants were absent from their trade premises on business purposes Judgment of Morritt LJ: "1) These appeals raise a common question of some general importance as to the powers of a bailiff distraining for rent or a sheriff executing a writ of fieri facias forcibly to re-enter the premises in which the relevant goods are kept for the purpose of removing them. It is not in dispute that entry for the purpose of effecting the initial seizure may only he made with the consent of the occupant or other person in possession of the premises. The question is whether in any and, if so, what circumstances the bailiff or the sheriff in walking-possession of the goods is entitled forcibly and without the consent of the occupant or other person in possession of the premises to re-enter in order to remove the goods for the purposes of sale. 4) Though there are similarities between the position of a bailiff and a sheriff their respective legal rights and obligations are not the same. Thus, it is necessary to consider the two cases separately. Equally it is helpful to test the apparent position of the one against that of the other. For that reason I propose to consider the position of the bailiff and the sheriff separately, but in respect of the common question I have identified, before considering the other questions which arise in and the outcome of each appeal. Distress for rent 5) Though the remedy of distress is available for liabilities other than rent I confine my comments to the remedy as incident to a demise of land for the recovery of rent. The process consists of three stages, namely, entry into the premises, seizure of the goods and securing or impounding the goods. Originally goods so seized might only be impounded in the local pound to which the distrainor was obliged to take them. Further, the goods there impounded might only be detained until the outstanding rent was paid. 6) Section 1 of the Distress for Rent Act 1689 amended the law so as to entitle the distrainor to sell the goods so impounded and to recoup the arrears of rent out of the proceeds of sale. Originally the goods had to be appraised before sale but this requirement was abolished by Law of Distress Amendment Act 1888 s.5. 7) Section 10 of the Distress for Rent Act 1737 amended the law by enabling goods to be impounded and, indeed, sold on the premises where they were at the time of seizure. 8) The section contains no express provision as to the right of the distrainor to return to those premises for the purpose of removing the goods for sale elsewhere but provides, in a later passage, that: "it shall and may be lawful to and for any person or persons whatsoever, to come and go to and from such place or part of the said premises, where any distress for rent shall be impounded and secured as aforesaid, in order to view, appraise, and buy, and also in order to carry off or remove the same, on account of the purchaser thereof ..." That section may be contrasted with section 7 which authorises a landlord seeking to levy a distress and those authorised by him in the daytime to break open and enter a house or other building in which he suspects that there are goods on which he is entitled to distrain but which have been fraudulently concealed from him. In the case of a dwelling house the power might only be exercised after the landlord had sworn before a justice as to the reasonable ground for his suspicion. 9) It is also necessary to notice section 19 of the Act of 1737. The purpose of the section was to prevent an irregularity during the course of the distress giving rise to a trespass ab initio with the consequence that the distrainor was liable for the value of the goods without a set-off on account of the arrears of rent. 11) At some time following the enactment of the Law of Distress Act 1737 a practice grew up of an agreement, commonly called a walking-possession agreement, being entered into between the landlord or bailiff on the one hand and the tenant on the other to regulate their relations after the initial entry and impounding of the goods. It is apparent from the decision in Lavell v O'Leary [1933] that at that period the form of agreement authorised the bailiff to "re-enter the premises peaceably or by force, if required, at any time."5 Likewise in Watson v Murray the walking-possession agreement in use in January 1952 by the sheriff executing a writ of fl fa authorised the sheriff to "re-enter my house and premises ... at any time you may think proper ... and if necessary to use force for that purpose."6 In January 1954 the Distress for Rent Rules 1953 made by the Lord Chancellor under Law of Distress Amendment Act 1888 s.8 prescribed, for the first time, a form of walking-possession agreement which might be "used with such variations as circumstances may require."7 The form so prescribed provided simply that "you [the bailiff and the man in walking-possession] may re-enter the premises at any time while the distraint is in force." Though the rules and other parts of the walking-possession agreement have been amended from time to time no change has been made to the provision entitling the bailiff to re-enter... 13) It is in these circumstances that the tenants contend that the bailiff had no right to re-enter their premises without their consent. They submit that the walking-possession agreement gave no such authority and no right to act as he did was conferred on the bailiff by the common law. Judge Roger Cox disagreed. He said: "Was the bailiff entitled to break in on 17 February 1992? If it was illegal, he was not. I have resolved that point and it was not an illegal distress. Granted that the original distress was not itself illegal, it is well settled that a ba |
