Berlin model (right)

from Wikipedia, the free encyclopedia

The Berlin model (also called Berlin eviction ) is a method of reducing costs in the event of evictions , in which the household effects are not removed and stored, but only the lock is replaced.

Problem

In the "classic" evacuation of the apartment according to According to § 885 ZPO, removal, safekeeping and utilization / destruction of the household effects are carried out by the bailiff. Therefore, in addition to the bailiff's fees, there are also shipping and storage costs. The landlord has to keep the objects after the handover of the apartment by the bailiff. Possibly. he must surrender them (if non-attachable) or dispose of them (if attachable). The tenant must generally bear the necessary costs. However, the landlord is liable and has to make a corresponding advance payment (in the Federal Court of Justice judgment cited below , it was an advance of € 3,000 for vacating the apartment). From the obligation to keep the evacuated goods by the landlord ( § 1215 , § 1257 BGB ), the latter makes himself liable for damages in the event of loss of the inventory after evacuation as a violation of property.

Solution via landlord's lien

In contrast, the landlord exercises at the Berlin clearing the lien gem. § 562 BGB on all objects in the apartment. The bailiff is only asked to hand over the apartment, in practice only the lock is changed. This eliminates the costs of transporting and storing household items. The aim is also to reduce the advance payment and bailiff fees.

The procedure is confirmed by the BGH judgment:

The obligee can limit the foreclosure according to § 885 ZPO to the handover of the apartment if he asserts a landlord's lien on all objects located in the rooms. Even if in such a case there is a dispute between the parties to the enforcement proceedings according to § 885 ZPO about whether all movable property of the debtor is covered by the landlord's lien, the bailiff does not have to evacuate the apartment according to § 885 Paragraphs 2 to 4 ZPO.

The name "Berliner Modell" comes from numerous case law records from the Berlin area. There, the application is particularly widespread due to the special structure, which was characterized by financially weak citizens and at times large vacancies. The application is ideal for this problem area, since the potential problem with application in:

  • items not subject to attachment
  • denying the lien by the tenant

lies. However, this does not occur with typical rental nomads . Nevertheless, the model is still not without controversy, as it undermines the ZPO's seizure protection regulations.

Legal regulation since 2013

The Berlin model has been codified in a simplified form as a limited enforcement order since May 1, 2013 in § 885a ZPO. The regulation allows the enforcement order to be limited to the enforcement of surrender without exercising the landlord's lien. In order to secure evidence, the bailiff has to document the freely visible movable property that is in the apartment, although the enforcement order does not refer to them. The items must then be kept for a month, with the exception of items that the former tenant obviously does not want to get back (waste, etc.). The lessor's liability during this period is limited to intent and gross negligence . Like the bailiff (see above), the landlord also has to surrender non-attachable items on request. After the month has expired, he can have objects that can be deposited, such as real jewelry or securities, deposited with the depository office of the competent local court and, in accordance with Section 383 (3) BGB, have objects that cannot be deposited, such as household effects, sold by a publicly appointed, sworn auctioneer due to default in acceptance.

When the apartment is taken possession of, the enforcement proceedings are ended, even if the debtor's movable property is still in the apartment.

literature

Individual evidence

  1. ↑ Lübeck Regional Court NJW-RR 2010, 810.
  2. ↑ decision I ZB 45/05 (PDF) Federal Court. November 17, 2005. Retrieved January 28, 2019.
  3. ↑ BR Dr 313/12 p. 44
  4. ↑ No temporary enforcement protection after the Berlin evacuation. In: Az. 3 U 80/13. Higher Regional Court of Rostock, October 15, 2013, accessed on October 1, 2015 (German): “ The Rostock Higher Regional Court rejected the application for temporary enforcement protection. Because such protection is no longer possible after the Berlin evacuation. If the tenant has lost possession of the apartment and the landlord has acquired possession, enforcement is ended and enforcement protection is no longer possible. "