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Created on Saturday, 08 November 2008 00:57

Last Updated on Friday, 28 December 2012 18:55

Saving Landlord Costs When Executing of an Eviction Order

On August 18, 2005, the BGH (re ZB 135/05) upheld the long term practice of saving landlord costs, when enforcing an execution order for rental premises.

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As so often happens, when a tenant failed to pay his rent, and the landlord terminates the contract, he sues for eviction. After the landlord wins his case, he applies for an eviction order to vacate the premises.

In the case at hand, the landlord first paid a € 400 deposit as advance costs to the court to start eviction proceedings. These costs were to cover the legal transfer of possession back to the landlord. Meanwhile, the court bailiff wanted to have different advance costs in the amount of € 6,500 for the actual physical eviction of the tenant. The tenant, a nomad tenant, had already vacated the premises and his whereabouts are unknown.

However, even where a tenant has disappeared, any property left by him in the premises still technically belongs to him. Now, the cost saving method is to only have the sheriff enter the premises, take possession of any property and return it to the proprietor (nomad tenant). After obtaining the premises back, a landlord will exercise his landlord’s lien against any movable property of the tenant left in the house (§562 BGB). The overly expensive method is for the bailiff to hire professional movers to empty the premises and hold the possessions in storage. Since this is expensive it justifies the higher costs.

The Federal Court of Justice has to clarify whether the inexpensive method legal. In other words, does the enforcement of a vacation order always require use of a storage company to pick up and to store the things left behind? Under §885 ZPO, the bailiff is required not to hand over certain exempted items of the tenant (e.g. clothing or garbage) against, which no lien arises, but instead to hold them in storage for the nomad tenant. Typically, those things that are left behind in the apartment have little or no value and really represent abandonment. Therefore, the bailiff’s use of professional is not economically justified and creates financial waste. But the debtor’s right to return his property is frustrated if the bailiff turns over everything in the house to landlord.

The court reasoned, that the vacating tenant was sufficiently protected since he had the opportunity to take his “valuables” (e.g. clothing and garbage) with him when he quit the house. The court judged that the landlord may apply for eviction of the apartment without having to pay for a storage company. The eviction may be limited to just return the house without previously emptying if the landlord exercises his landlord’s lien on everything the house contains. The landlord’s lien overrides the removal of items not subject to execution. It is not the bailiff’s task to control if the items in the house are subject to execution or not. This would be something the debtor would have to take action against.






Published on the old CMS: 2007/4/1
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