Perclusion law

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Perclusion right (blocking right ) is the right of the landlord to prevent the transfer of the property brought in by the tenant (in the sense of a deposit being carried over ) if he is unjustifiably in arrears with the rent and no other security is available. The application of Perklusionsrechts does not set the property of the tenant ( debtor advance) of the introduced matter. The perclusion right exists as a security interest even without a preceding or subsequent lien ( landlord's lien ).

With the full settlement of the outstanding rent or the handover of a security, the tenant can obtain the release of the thing (in Roman law with the interdictum de migrando).

Austria

The landlord's right of perclusion (blocking right) according to Section 1101, Paragraph 2 of the Austrian Civil Code , can prevent the tenant ex lege and, if necessary, by force, from removing the brought-in items (illates) without first having to go to court . The things brought in by the tenant or his family members (Invecta Illata) are considered tacitly pledged to the landlord when they are taken into possession (the actual start of the rental) (landlord's lien = Illate lien, § 1101 Paragraph 1 ABGB). This landlord's lien serves

  • as security for the landlord's rent claims from the rental agreement as well
  • According to the prevailing opinion, not for any damage that the tenant or one of his roommates culpably causes (Binder in Schwimann, §1101 RZ 2)

So that the tenant does not remove the property brought in from the apartment and thus undermine the landlord's lien, the landlord has a right of perclusion with regard to the property, provided there is no other security. He may therefore hold onto the items brought in at his own risk and does not have to bring a lawsuit in advance .

If the perclusion is wrongly applied by the landlord, the tenant can, for his part, take legal action (Interdictum de migrando) to legally demand the release of the confiscated property, as well as if third-party property has been confiscated or the right to perclusion has expired against payment of the claim or a sufficient one Security has been passed.

The right of perclusion expires within three days. During this time, the landlord must assert the ex lege landlord's lien and apply for a judicial attachment.

Liechtenstein

In the Principality of Liechtenstein , which in the 19th century largely adopted the Austrian ABGB , the perclusion right in Section 1101, Paragraph 2 FL-ABGB is largely regulated word for word. In Liechtenstein, however, there is no ex lege lien on the items brought in, but a right of retention .

literature

  • Digests : D.43, 32; D. 20, 2, 9; D. 39, 2, 33 and 34.
  • Schneider, ..., The landlord's perclusion right to property brought in by the tenant, digital library of the Max Planck Institute for European Legal History, 2010-09-05T15: 29: 20Z, magazine for contemporary German law. Volume 2, 1882, pp. 101-114.
  • Herbert Hausmaninger , Walter Selb : Roman private law (=  Böhlau study books ). 1st edition. Böhlau , Vienna / Cologne 1985, ISBN 3-205-07171-9 .

Individual evidence

  1. ↑ Salvianum on the lease on the fruits . The lessor has no interdictum de migrando like the landlord.
  2. ↑ See also: Herbert Hausmaninger, Walter Selb: Römisches Privatrecht. 1985, p. 186.
  3. ↑ Rent 49,129
  4. ↑ Items that have been withdrawn from pledging are not subject to the landlord's lien.
  5. ↑ Only to physically available things, not to demands.
  6. ↑ For example things that are subject to retention of title or that have only been entrusted to the tenant.
  7. ↑ Instead of the pair of terms: “ description by deposit”, the FL-ABGB , Section 1101, Paragraph 2, uses the term: “description of retention”.
  8. ^ Antonius Opilio : Working Commentary on Liechtenstein Property Law. 1st edition. Volume II, Dornbirn 2010, ISBN 978-3-901924-25-5 , comments on Art 170k and Art 380 ff SR.