Innkeeper Lien
The innkeeper and hotelier lien is a statutory lien that the innkeeper is entitled to as security for his due claims against guests and extends to the items brought in by the guests. The innkeeper or hotelier may compensate for the impending financial disadvantage in the event of non-payment by seizing the items brought in by the guest.
General
German civil law grants some entrepreneurs a statutory right of lien in favor of their unpaid, due services . These are entrepreneurs who come under control of movable property that is brought in by the debtor . In addition to the contractor, this also includes the innkeeper and hotelier. The central regulation of § 704 BGB provides that innkeepers and hoteliers are entitled to a lien for their due claims from the innkeeper or accommodation contract on the property brought in by the guest. It is a legal lien that applies automatically, i.e. it does not have to be expressly agreed in the hotel contract. The guest is usually not aware that there is a latent right of lien on many things that they have brought into the hotel or restaurant.
requirements
As with all statutory liens, the restaurateur's lien must meet the legal requirements so that the restaurateur can enforce his lien.
- Movable things :
Only movable items and bearer papers are covered by the lien, but not order papers or recta papers (e.g. savings books ). You have to get into the domain of the innkeeper (i.e. the hotel and hotel facilities such as hotel garages).
- Ownership :
The items must be the sole property of the guest, but mere possession ( e.g. leasing , rent ) is not enough. Under retention of title to the guest delivered goods shall be governed in terms of entitlement law the statutory lien, unless they have been introduced. With full payment of the reserved goods, the lien on the property continues. However, a lien arises when reserved goods prior to their introduction to the hotel property as collateral were (particularly relates to credit-financed motor vehicles).
- Attachment protection :
All items belonging to the guest that cannot be seized are not subject to the innkeeper's lien ( Section 562 (1) sentence 2 BGB). These include u. a. items used for personal use or household purposes, in particular items of clothing, “insofar as the debtor needs a modest way of life and household management appropriate to his occupation and debt” ( Section 811, Paragraph 1 ZPO ).
- Bring in :
The lien arises on items that are brought into the property of the hotel or restaurant with the will of the guest during their stay.
- Removal :
If items brought in are removed from the domain, the innkeeper lien expires ( § 704 sentence 2 BGB, in conjunction with § 562a sentence 1 BGB), unless this is done without the knowledge or with justified resistance of the innkeeper. Section 562b (2) sentence 1 BGB (in conjunction with Section 704 sentence 2 BGB) provides for compensation, which grants the innkeeper a right to have the goods returned. The right of lien remains in effect here for the time being, but expires one month after knowledge of the removal, provided the innkeeper does not assert his claim to recovery in court ( Section 562b (2) sentence 2 BGB). If the item is only removed temporarily (e.g. a car in the hotel garage is used for excursions), the lien arises again after the item is returned.
Strict accessory
The innkeeper's right of lien - initially without possession - extends exclusively to the claims from the innkeeper or hotelier contract (hotel rent, ancillary services, food and drinks, damage in the hotel). These claims must have arisen and be due. However, this does not secure other claims.
enforcement
If the due claims of the innkeeper or hotelier are not or not fully paid, the innkeeper can object to the removal of the items brought by the guest under the above conditions and make use of his lien by taking possession. Liability occurs as soon as the secured claim has become due. Through the so-called entanglement of the pledge , the hotelier, as the pledgee, gains the power of disposal over the pledged items, which excludes the guest from further use or removal against the threat of punishment (otherwise breach of entanglement; Section 136 StGB ). The right of lien may then be realized by selling the lien ( § 1228 BGB). The normal case is the public auction according to § 1235 BGB, whereby the auction proceeds serve to settle the claims.
The hotelier may also use a hotel porter or other hotel staff - as his representative - in accordance with § 704 BGB i. V. m. Section 562b (1) of the German Civil Code (BGB) against the removal of luggage brought by the guest, provided that the items involved are subject to seizure. If the guest brings his luggage out of the hotel, he may have impaired the hotel owner's statutory lien and thus inflicted a financial disadvantage on the hotel owner; because the lien belongs as a property right to the property of the hotel owner. However, the innkeeper does not have the right to self-help to satisfy the hotel claim ( Section 230 Paragraph 1 BGB) and also not to avoid difficulties in providing evidence . However, the innkeeper has the right, within the framework of self-defense , to prevent the guest from taking the seized property with him by force ( Section 32 StGB).
See also
Individual evidence
- ↑ BGH NJW 1965, 1475
- ↑ Palandt / Thomas, BGB commentary 42nd edition , § 704 BGB margin no. 2.
- ^ BGH , judgment of September 22, 1983, BGHSt 32, 88.
- ^ Eduard Dreher / Herbert Tröndle , Commentary on the StGB 41st edition , § 253 StGB margin no. 14 with § 263 StGB marg. 27; Lackner in LK, 10th edition, § 253 StGB marg. 14 with § 263 StGB marg. 180.
- ^ BGH, judgment of May 11, 1962, BGHSt 17, 328, 330.
