When
a tenant is in default, many landlords face a common question: whether pursuing
their tenant for a money judgment is worth the extra time and expense. All experienced landlords know that they can
quickly evict a tenant. However, the
extra effort to obtain a money judgment[1]
and even more effort to collect on that judgment may or may not be worth
it. In some situations, a distress
warrant may solve this dilemma.
Many landlords and
property managers may have performed dozens of evictions, but may have never
heard of a distress warrant. A distress
warrant is an accelerated proceeding by a landlord against a tenant to seize
the tenant’s leviable property to satisfy rents owed. Leviable property includes equipment,
furniture, machinery – and as one sheriff once reminded me, cows. This would not include property subject to
the process of garnishment, such as bank accounts or wages.
The legal background of
a distress warrant begins with the concept that every landlord has a lien
against the leviable property of his tenant.[2] The way to enforce this lien is through a
distress warrant. The process is not
extremely complicated, but is riddled with technical requirements and pitfalls
for the inexperienced. Unlike the
eviction process, which many non-attorneys pursue successfully, I do not
recommend that a non-attorney attempt a distress warrant proceeding. Let us now discuss some advantages and disadvantages
of a distress warrant.
Advantages
The obvious advantage
of a distress warrant is the opportunity to seize the defaulted tenant’s
property in order to collect past due rent.
Also, the proceeding is quick.
The court is required to schedule a hearing within five to seven days of
service.[3] At that hearing, the court is obliged to
issue a distress warrant (i.e. a command to the sheriff to seize the tenant’s
property) if the tenant does not pay what he admits is owed or post a bond.[4]
Disadvantages
First, the distress
warrant procedure is a separate and distinct procedure from a dispossessory
(eviction) action. Therefore, anyone who
wishes to both seize their tenant’s property and evict them must file two actions.
Second, for due process
reasons, before a distress warrant can issue, the tenant must have both notice
and a hearing before he loses possession of his property.[5] Although the law explicitly commands the
tenant not to “convey, remove, or conceal his property” without posting a bond
or paying the undisputed rent into the court, this requirement may be ignored
by the tenant.[6] This renders the action impractical in some
situations.
Finally, because these
actions have decreased in their popularity, many courts and especially the
clerk’s office may be unfamiliar with the legal process. In my experience, an attorney is needed just
to navigate the filing process.
Because of these
disadvantages, a distress warrant is most practical in commercial or high-rent
residential situations. However, even
with the above disadvantages, a distress warrant is a unique and often
successful way for landlords to collect on past due rent. Next time you have a tenant in default
explore this possibility with your attorney.
Disclaimer: The information contained in
this article is for informational purposes only and is not legal advice or a
substitute for legal counsel. It does not constitute advertising or
solicitation. The information in this article may or may not reflect the most
current legal developments; accordingly, this article is not guaranteed to be
complete, and should not be considered an indication of future results.
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