One of the most difficult and common problems faced by a
landlord is a tenant who is unable or unwilling to pay rent. Under
s. 104 of the Alberta Civil Enforcement Act, a landlord
may seize the personal property of a residential or commercial
tenant in order to secure the landlord's claim for unpaid rent
under the lease (although seizure is typically much more effective
in a commercial context). This is called the landlord's
"right of distress."1
Benefits of Seizure
Besides enhancing a landlord's leverage over a delinquent
tenant, the right of distress provides a landlord with a number of
A landlord may sell tenant property
seized pursuant to the right of distress without a court
A landlord who exercises its right of
distress has priority over unsecured creditors.
A landlord who exercises its right of
distress also has priority over a secured creditor whose security
interest has not been registered in the Personal Property Registry
prior to the seizure.
The landlord's right of distress
arises as soon as rent is late (as defined by the lease).
A landlord does not have to provide a
tenant with any notice prior to exercising its right of
Distress is a traditional common law remedy and the general
rules respecting the right of distress are similar across Canada.
However, Alberta is unique in folding the right of distress into
its general civil enforcement scheme. A chief consequence of
Alberta's codification of the right of distress is that any
seizure of tenant property by a landlord in Alberta
must be conducted through a civil enforcement
agency. In conducting the seizure, the civil enforcement agency
must employ the services of a civil enforcement bailiff acting
pursuant to a warrant of distress. Landlord's should also keep
in mind the following:
At the time of a seizure, the tenant
must be provided with a Notice of Objection to Seizure and
Information for Debtor form (the "Objection
Form"). The tenant can object to the seizure of some
or all of their property by filling out the Objection Form.
If the tenant objects to the seizure
of property, the seized property cannot be sold without a
Court's permission. However, a tenant who lacks a valid reason
for objecting to the seizure may be required to pay a
landlord's court costs.
In the context of a residential
lease, the landlord may seize: a) personal property of the tenant
provided such property is located on the leased premises at the
time of seizure; and b) personal property of any relative of the
tenant provided such property is located on the leased premises at
the time of seizure, and the relative is also living with the
tenant at the time of seizure.
In the context of both commercial and
residential leases, the landlord must be careful not to wrongfully
seize the property of innocent third parties.
Do I have the right to seize?
There must be a valid lease.
The landlord CANNOT seize for
rent after the lease has been terminated. Distress must be
used before termination of a lease. Typically,
commercial leases will allow the landlord to take back the premises
without terminating the lease. Your legal counsel can advise on the
specific rights and remedies under your lease.
The tenant must be "in
arrears" before the landlord can seize.
If the applicable lease states that
accelerated rent is collectable as rent then the landlord may seize
for that accelerated rent. This also applies to common costs and
other lease charges.
The landlord must comply with the
terms of the lease and also with the common law. Seeking the advice
of legal counsel before proceeding with seizure is advisable.
Should I seize?
The landlord should make a
determination of the value of the goods to be seized and consider
whether it warrants the costs of seizure. There should be
sufficient value in the property at forced sale prices to at least
cover seizure and sale costs (as a rule of thumb, the landlord will
want a minimum of $5000 worth of goods to cover off the legal and
civil enforcement costs).
Distressed property typically
receives a fraction of its initial value at forced auction. If
there is not enough value in the seized goods the seizure process
will cost the landlord more than can be gained through the
There are special exemptions for
certain goods (food, clothing, appliances, etc.) that apply to
residential tenancies which should be considered.
Seizure costs vary but at minimum
generally start in the $750 to $1000 range. In addition, there will
be costs for the locksmith, the bailiff's time, mileage,
removal costs and storage costs.
The tenant's property must be on
the rental property for bailiff to seize it. The bailiff is not
allowed to seize the personal property of others that may be on the
site at the time of the seizure.
 Civil Enforcement Act, R.S.A. 2000 c. C-15
at s. 104.
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