Distraint for rent is a common law remedy for landlords of
commercial property. It allows a landlord to seize assets belonging
to the tenant and sell those assets to recover rent arrears.
The "cumulative remedies" clause in a commercial lease
preserves all of the Landlord's remedies under the commercial
lease. It does not operate to change the position at law that a
landlord may not distrain against a tenant's property and
terminate the lease at the same time. Distress and termination are
mutually exclusive remedies.
In Delane Industry Co. Ltd. v. PCI Properties Corp.,
2013 BCSC 1397, as appealed to 2014 BCCA 285, the parties entered
into a sublease, which included the following provision dealing
with cumulative remedies (para. 18):
No remedy conferred upon or reserved to the Landlord herein, or
by statute or otherwise, will be considered exclusive of any other
remedy, but the same will be cumulative and will be in addition to
every other remedy available to the Landlord and all such remedies
and powers of the Landlord may be exercised concurrently and from
time to time and as often as may be deemed expedient by the
The landlord alleged there was unpaid rent and, after giving the
required notice (the "Demand Notice"), it chose to
exercise the remedy of distress. The seized goods were sold but
there remained a balance owing to the landlord. Later that same
day, the landlord delivered a subsequent notice to terminate the
sublease, effective immediately (the "Notice of
The court held that the landlord had not effectively terminated
the sublease. It began with the proposition that a landlord cannot
levy distress against a tenant's property and terminate the
lease at the same time (as these remedies are mutually exclusive)
A landlord who has elected distress may not terminate the lease
on the basis of the same breach on which the distress was founded.
That is not to say that a landlord is without a remedy for the
recovery of the prior rental arrears. However, a landlord cannot
rely on notice of default given while distress is ongoing to
terminate the lease immediately upon completion of the
A new notice of default is required after a fresh default has
occurred in order to claim rental arrears that pre-dated the
distress proceeding. That is, a landlord may not rely on rental
arrears that accrued prior to the completion of the distress as the
basis for terminating a lease. Such new notice of default must be
based on a new default or breach by the tenant and the landlord
must comply with the requirements in the lease, such as notice and
cure periods, for termination by the landlord.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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