The landlord's lien is a non-possessory statutory lien of the landlord to the property of the residential and business space tenant brought into the rented space for claims arising from the tenancy (§ § 562 ff. BGB ).
The statements made on the landlord's lien also apply accordingly to the lessor's lien ( Section 581 (2) BGB). Both are part of the statutory liens that only arise if the following conditions are met:
- Movable property : Only movable property and bearer papers are covered by the landlord's lien, but not order papers or recta papers (e.g. savings books ). Even pseudo-parts of a rented property are subject to the landlord's lien as movable objects.
- Ownership : The things must be the sole property of the tenant, but mere possession ( e.g. leasing , rent ) is not enough. Under reservation of ownership to the lessee delivered goods shall be governed in terms of entitlement law the legal right of lien, if they have been introduced. With full payment of the reserved goods, the landlord's lien on the property continues. A landlord's lien does not arise, however, if reserved goods are transferred to third parties before they are brought into the rented property (see assignment by way of security ). If the seller with reservation of title withdraws from the contract (for example due to non-payment of the purchase price), he can demand the return of the goods subject to reservation of title.
- Protection against seizure : All items belonging to the tenant that cannot be seized are not subject to the landlord'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, linen, beds, household and kitchen utensils, "insofar as the debtor needs a modest way of life and household management that is appropriate to his professional activity and his debts" ( Section 811 (1) ZPO) ). When the tenant moves out, the landlord may take possession of the property subject to the lien ( Section 562b (1) sentence 2 BGB). At the request of the tenant, he must surrender the items not subject to the landlord's lien. If the landlord does not comply with these obligations, he is liable for damages in accordance with Section 280 (1) BGB and Section 823 (1) BGB. In addition, the tenant can sue for the surrender of the non-attachable movable property and claim provisional legal protection according to § § 935 ff. ZPO for a temporary settlement of the ownership situation .
- Bringing in: The landlord's lien arises on items that are brought into the rented premises with the will of the tenant during the rental period. The items produced in the rental rooms are also considered to have been brought in. All items that are intended to remain in the rented premises for temporary purposes (e.g. warehouse) are also considered brought in. On the other hand, items stored for a short time are not brought in and are not liable (e.g. box office).
- Strict accessory nature : The landlord's lien applies to claims from the rental agreement (rent, ancillary services, claims for damages) for past periods and according to ( Section 562 (2) BGB) for future periods, but only for the current and following rental year (not calendar year). The latter restriction only applies to future claims. Past periods are always secured by the lien.
While the statutory landlord's lien does not require an agreement and applies automatically, a rental deposit must be contractually regulated in the rental agreement ( § 551 BGB). If a rental deposit is required, it applies cumulatively in addition to the landlord's lien.
Moving out of the tenant
If the tenant moves out, the landlord may take possession of the property subject to the lien. If the items have been removed without the knowledge or with the objection of the landlord, he can demand the surrender for the purpose of bringing them back to the property and, if the tenant has moved out, the surrender of the property.
Possible measures in the event of disregard for the tenant after exercising the landlord's lien
The dragging of the deposit can only be prosecuted under civil law. The return of pawns is punishable according to § 289 StGB . The landlord must file a complaint before one month has elapsed, because otherwise the landlord's lien expires after the stolen property becomes known.
The landlord may neither enter nor vacate the tenant's apartment without a court decision. The Federal Court of Justice (BGH) has decided that the unauthorized occupation of an apartment and its unauthorized evacuation by a landlord , which is not covered by a court title, constitutes an unauthorized self-help , for the consequences of which the landlord is liable regardless of fault according to § 231 BGB. Rather, as part of his duty of care , the landlord has to have the bailiff draw up an inventory list in which all seized objects are recorded, even in the event of a so-called Berlin eviction with a limited enforcement order. If he fails to do so, the tenant can later demand compensation for items that are no longer available or damaged. The landlord is then obliged to prove that the items have (had) less value or were not damaged by them. With this, the BGH supports a ruling by the Karlsruhe Higher Regional Court, which had already determined that the landlord is not permitted to change the door locks of the rented apartment.
Caravans, boats and other accessories
Caravans, boats, gazebos, etc. are also subject to the law applicable to normal apartments ( Section 123 StGB). Whether the prohibited self-help fulfills the criminal offenses of trespassing ( § 123 StGB) and theft or burglary (§ § 242 StGB, § 243 StGB) is disputed. The criminal offense of trespassing is likely to be fulfilled in the case of prohibited self-help, because trespassing requires "unlawful entry into the home". Since the BGH classifies the so-called “cold eviction” as prohibited self-help, the conditions for trespassing are to be regarded as fulfilled.
The landlord's right of lien expires when the property is removed from the property, unless this is done without the knowledge or with the objection of the landlord. The right of lien expires one month after the landlord becomes aware of the removal of the items, if he has not previously asserted this claim in court.
The landlord's lien expires if the item is permanently removed from the rented space with the knowledge or approval of the landlord ( Section 562a BGB). However, if the item is permanently removed in the course of regular business operations or normal living conditions, the landlord's lien expires even without the knowledge or approval of the landlord ( Section 562a sentence 2 BGB) or if the items left behind are apparently sufficient to secure the landlord. If the item is only removed temporarily (e.g. a car in the rental garage), the landlord's lien arises again after the item has been returned.
The lessor's waiver of his statutory right of lien has real effect ( § 562 , § 1257 BGB); so it works towards everyone. If the expectant right of the reserved purchaser is subsequently canceled by the contracting parties (even if it was already covered by a landlord's lien), the landlord's lien expires.
According to § 1101 Civil Code has in Austria to ensure the rent receivables, the landlord of immovable property, the lien on the property brought, the tenant or his living with him in communal household family members up and equipment pieces and driving Nissen, if they are not deprived of the garnishment. According to Art. 268 OR , the landlord of business premises in Switzerland has a right of retention for the due annual rent and the current half-yearly rent to the movable property that is located in the rented space and that is part of its establishment or use.
- Literature on landlord's lien in the catalog of the German National Library
- ↑ BGH NJW 1965, 1475
- ^ BGH, judgment of November 17, 2005, Az .: I ZB 45/05
- ↑ RGZ 132, 116
- ^ BGH, judgment of July 14, 2010, Az .: VIII ZR 45/09
- ↑ OLG Karlsruhe of February 11, 2005, Az .: 10 U 199/03; similar to OLG Düsseldorf, ZMR 1983, 376
- ^ Higher Administrative Court Lüneburg, judgment of July 11, 2007, Az .: 9 LB75 / 07; BAG, judgment of January 24, 2007, Az .: 4 AZR 19/06 = BAGE 121, 80
- ↑ analogous to BGH WM 1984, 1606 on liability for accessories