The Distress Act

The Distress Act, C.C.S.M. c. D90 bilingual version (HTML) Table of Contents Section 1 Copy of demand at time of distress 2 Costs of distress for rent 3 Costs of seizure under security agreement 4 Penalty for overcharging 5 Agreement protected 6 Presence of sheriff, etc., not necessary 7 Removal of goods for sale 8 Priorities of claims 9 Regulations HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: Copy of demand at time of distress 1 Every person who makes and levies a distress shall give to the person on whose goods and chattels the distress is levied a written demand signed by the person levying the distress demanding payment of the amount owing and in respect of which the distress is made and of all costs and charges of the distress, and there shall be printed on the demand or attached thereto a copy of the regulation prescribing the fees and charges that may be charged and collected in respect of the distress or an extract of the regulation indicating those fees and charges. Costs of distress for rent 2 No person making a distress for rent, and no person employed, in any manner, in making such a distress, or doing any act whatsoever in the course of the distress, or for carrying it into effect, shall have, take, or receive out of the proceeds of the goods and chattels distrained upon and sold, or from the tenant distrained on, or from the landlord, or from any other person, any other or more costs and charges, for and in respect of the distress or any matter or thing done therein, than those prescribed in the regulations and applicable to each proceeding that has been taken in the course of the distress; and no person shall make any charge whatsoever for any act, matter, or thing mentioned in this Act, or in the regulations, unless the act, matter, or thing has been really performed or done. Costs of seizure under security agreement 3 No person making a seizure under a security agreement as defined in The Personal Property Security Act , or any other extra judicial process whatsoever, and no person employed in any manner in making such a seizure, or doing any act whatsoever in the course of the seizure, or for carrying it into effect, shall have, take, or receive out of the proceeds of the goods and chattels seized and sold, or from the person against whom the seizure is directed, or from any other person, any other or more costs and charges, for and in respect of the seizure or any matter or thing done therein or thereunder, than those prescribed in the regulations and applicable to each act that has been done in course of the seizure; and no person shall make any charge whatsoever for any act, matter, or thing mentioned in the regulations, unless the act, matter, or thing has been really performed or done. S.M. 1993, c. 14, s. 77 . Penalty for overcharging 4 Where a person making a distress or seizure referred to in either section 2 or 3 takes or receives any other or greater costs than are prescribed in the regulations, or makes any charge whatsoever for any act, matter, or thing mentioned in the regulations and not really performed or done, the person aggrieved may cause the person making the distress or seizure to be summoned before a judge of the Court of King's Bench, and the judge may order the person making the distress or seizure to pay to the person aggrieved treble the amount of the moneys taken contrary to this Act and the costs of the summons; and in default of immediate payment of the moneys, together with costs, the judge may order execution to be issued against the goods and chattels of the person ordered to pay the moneys. Agreement protected 5 Nothing in this Act invalidates an express agreement entered into for the object of varying the fees prescribed in the regulations. Presence of sheriff, etc., not necessary 6 No sheriff, under-sheriff or constable need be present or assist at a distress or seizure. Removal of goods for sale 7(1) For the purpose of sale the goods and chattels distrained or seized for rent shall, at the request in writing of the tenant or owner of the goods and chattels, be removed to a public auction room, or to some other fit and proper place specified in the request, and be there sold. Expenses of removal 7(2) The costs and charges attending the removal and any damage to the goods and chattels arising therefrom shall be borne and paid for by the person requesting the removal. Definition of "trader" 8(1) In this section " trader " means a retail merchant, a wholesale merchant, a commission merchant, a manufacturer, or a person who as their ostensible occupation buys and sells goods, wares, and merchandise, ordinarily the subject of trade and commerce, and, without restricting the generality of the foregoing, includes a person who carries on the trade or business of a hotel keeper, an inn keeper, or the keeper or operator of a victualling house, a restaurant, a cafe, or a refreshment house. Landlord's priority limited to three months' rent 8(2) Where a tenant, having any goods or chattels on which their landlord has distrained, or would be entitled to distrain, for rent, has made an assignment for the general benefit of creditors or has made an authorized assignment, or has had a receiving order made against them, under the Bankruptcy Act (Canada), the right of the landlord to distrain or realize the landlord's rent by distress ceases from the date of the assignment or receiving order; and the assignee or trustee under any such assignment or receiving order is entitled to immediate possession of the property of the tenant. Priorities in distribution 8(3) In the distribution of the property of the tenant, the assignee or trustee shall first pay all wages, salaries, commissions, or compensation of any clerk, servant, travelling salesperson, labourer, or worker, in respect of services rendered to the tenant during three months before the date of the assignment or receiving order; and, after payment of such wages, salaries, commissions, or compensation, the assignee or trustee shall pay to the landlord, in priority to all other debts, an amount not exceeding the value of the distrainable assets and not exceeding three months' rent accrued due prior to the date of the assignment or receiving order and the costs of distress, if any. Landlord to rank as general creditor for balance 8(4) In the case of such an assignment or receiving order, the landlord may prove as a general creditor for (a) any arrears over three months' rent accrued due at the date of the assignment or receiving order; and (b) any accelerated rent to which the landlord may be entitled under the lease, not exceeding an amount equal to three months' rent. Occupation rental payable by assignee or trustee 8(5) Except as aforesaid, the landlord is not entitled to prove as a creditor for rent for any portion of the unexpired term of the lease; but the assignee or trustee shall pay to the landlord for the period during which the assignee or trustee actually occupies the leased premises, from and after the date of the receiving order or assignment, a rental calculated on the basis of the lease. Assignee may continue under lease after giving notice 8(6) Notwithstanding any provision, stipulation, or agreement in any lease or agreement for a lease, in case of any such assignment or receiving order, the assignee or trustee may, within one month from the date of the assignment or receiving order, by notice in writing signed by the assignee or trustee given to the landlord, elect to retain the premises occupied by the tenant at the time of the assignment or receiving order for the unexpired term of any lease under which the premises were held, or for such portion of the term as the assignee or trustee sees fit, upon the terms of the lease or agreement for a lease and subject to payment of the rent therefor at the rate provided by the lease or agreement for a lease. Temporary occupation by assignee after expiry of lease 8(7) Where any such lease has terminated or expired at or before or after the date of any such assignment or receiving order, the assignee or trustee may retain possession of the leased premises for a period of 40 days from the date of the assignment or receiving order without notice to the landlord; and the assignee or trustee may further, by giving notice in writing to the landlord at least 10 days prior to the expiration of the 40 days, retain possession of the leased premises for an additional period of 30 days, subject to payment of a rental calculated on the basis of the lease. Application of section 8(8) This section applies only to traders as defined in subsection (1). Regulations 9 The Lieutenant Governor in Council may make regulations prescribing costs and charges that may be charged and collected by a person making or levying a distress or seizure of goods and chattels.