Jurisdiction Matters: Divergent Rent Arrears Recovery Methods

By Magnus Miller James Sutherland Rob Bailey Kieran Buxton Zuzana Chotěborská

6 Mar 2026 7 min read

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Jurisdiction is a critical factor when landlords look to preserve value and reduce loss in a distressed real estate situation. This article outlines the distinct remedies available for dealing with commercial tenants’ goods where rent arrears have accrued across England and Wales and Scotland.

Overview

England and Wales

The Commercial Rent Arrears Recovery process (CRAR) is available to landlords of commercial premises. CRAR allows a landlord to instruct an enforcement agent to enter leased premises and take control of a tenant’s goods and sell them in order to recover a sum equivalent to the rent arrears, following the service of various notices by the landlord/the enforcement agent.

Scotland

In certain circumstances, landlords have a range of remedies (which are often referred to under the “umbrella” term of “summary diligence”) to recover unpaid rent without having to first obtain a court order. Two of the most common summary diligence remedies are “attachment” and “arrestment”.

Attachment allows the landlord to seize goods that belong to the tenant and are in their possession and sell them to cover the amount of rent arrears.

Arrestment has a similar function but applies to monetary sums held by third parties on behalf of the debtor – e.g. banks or property management agents. As it does not relate to “goods” in the broad sense, it is not covered further here.

In an insolvency context, there is an additional remedy of the landlord’s hypothec. Put very briefly, it is (a) a right in security over goods owned by the tenant and kept in the leased premises (b) up to the amount of any pre-insolvency unpaid rent that (c) comes into existence as a preferred, fixed security over the items, upon the tenant entering an insolvency process.

Side by side comparison – CRAR and Attachment

Both CRAR and Attachment allow landlords to seize and sell tenants’ goods in order to recover rent arrears but they have a number of key distinctions. We have set out key points of comparison in the table below:

	CRAR (England & Wales)	Attachment (Scotland)
What type of leases does the relevant recovery tool apply to?	Applies to all written tenancies of commercial premises. Not available on licences to occupy.	Commercial leases in writing, which have been registered in the Books of Council and Session for “preservation and execution”.
What is the legal basis for the relevant recovery tool?	A statutory power derived from the Tribunals, Courts and Enforcement Act 2007.	A mix of statute and common law rules
Who can rely on the recovery tool?	Usually, only the immediate landlord of a tenant who has failed to pay rent can exercise CRAR. However, in certain circumstances the immediate landlord’s mortgagee or a receiver appointed over the landlord’s interest may exercise CRAR against a tenant.	The tenant’s immediate landlord.
Who carries out the enforcement of the recovery tool?	The actual exercise of CRAR must be carried out by an enforcement agent. To exercise CRAR the agent must secure the goods at the premises, remove them from the premises or enter into a controlled goods agreement with the tenant.	Messengers-at-arms carry out the attachment process. These are individuals who are “officers of the court”. They will often be instructed to carry this out by solicitors. The messengers-at-arms provide all of the practical insight on the conduct of the attachment and take a record of what has been “attached”.
What outstanding amounts can one seek to recover using these recovery tools?	For the purpose of CRAR, “rent” includes the amount payable under the lease for the possession and use of the premises (together with any interest and VAT chargeable on that amount or on the interest). Rent does not include any sum in respect of rates, council tax, services, repairs, maintenance, insurance or other ancillary matters even if these amounts are reserved as rent in the lease.	Views vary in Scotland about what sums can be enforced by way of summary diligence. Our view is that the safest approach is only to enforce in respect of outstanding sums relating to rent (given that amount will be clearly stated in the lease or otherwise undisputed), whereas other sums such as service charge and interest can be less clear and are often not stated in the lease document.
What, if any, impact does the rent recovery tool have on any ability for the landlord to end the lease?	Using CRAR will likely waive any right to forfeit (i.e. terminate) the lease that may have arisen.	The landlord will retain the right to irritate the lease (i.e. the Scottish equivalent to forfeit the lease) for the arrears, unless the attachment process results in full satisfaction of the outstanding arrears.
What time limits are there on using the relevant rent recovery tool?	CRAR cannot be used until at least 7 clear days’ notice has been given and it must be exercised within 12 months of this notice (subject to extension by the Court). It can only be exercised in limited circumstances (and only in the first 6 months) after a lease has ended.	Attachment can be used throughout the lease and post-lease end, until such time as the obligation to pay the relevant arrears has expired due to the passage of time (generally 5 years from when the rent became due).
What is the effect of insolvency on the recovery tool?	CRAR may be stayed by the Court where the tenant is subject to a liquidation process. Leave of the Court is required where the tenant is in administration or subject to a Part A1 moratorium. If the tenant does go into liquidation, the landlord is not permitted to retain the benefit of any exercise of CRAR unless the goods were sold before the start of the winding up.	Permission of the court is required before attachment can be carried out where the tenant is in administration or subject to a Part A1 moratorium. If the tenant goes into liquidation, then there are specific rules that deal with attachment – including any attachment already carried out within 60 days before the date on which the tenant is wound up. In short, it does not create a preference in favour of the landlord who instructed the attachment.

Our cross-departmental Corporate Restructuring & Insolvency team works closely with specialists in our Real Estate Disputes team on distressed real estate matters across the UK. If you would like to discuss your rent recovery strategy or require further advice on enforcement against tenants’ goods in a distressed situation, please feel free to contact one of the key contacts below or any member of our Real Estate Disputes team.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2026. Specific advice should be sought for specific cases.