Regional Court of Frankfurt am Main, 1 February 2016, Ref.: 2-11 T 15/16
If a tenant has been legally ordered to vacate their rented flat, there are other options to prevent the eviction for a certain period of time or in the long term. For example, the tenant can file an application for protection against eviction, an enforcement counterclaim (enforcement defence action) or an enforcement reminder. An enforcement counterclaim, for example, serves to defend against enforcement measures for reasons that only occurred after the court proceedings were concluded. It does not remove the title that is being enforced, but only the enforceability of the title.
In the Frankfurt am Main Regional Court case discussed here, the tenants filed an enforcement reminder against the eviction because they were of the opinion that a rent certificate issued after the conclusion of the court proceedings had led to a continuation of the tenancy.
Facts of the Case:
After the eviction judgement, the landlord instructed the bailiff of the higher court to
The creditor in this case was the landlord of a flat that it had let to the debtors. In a judgement dated 13 July 2015, the debtors were ordered to hand over the flat to the creditor. As they did not do so voluntarily, the creditor instructed the superior court bailiff to evict them from the flat.
In a letter dated 21 December 2015, the bailiff set the date for the forced eviction as 1 February 2016.
Tenants filed a reminder against the enforcement of the eviction in accordance with Section 766 BGB
The debtors lodged a reminder against the eviction in accordance with Section 766 ZPO and applied for the enforcement (eviction) to be declared inadmissible. They claimed that the creditor had promised not to derive any rights from the default judgement. In doing so, they referred to an affidavit by debtor 1 and a rent certificate dated 10 December 2015 (in this rent certificate, the creditor merely confirmed the current rent or compensation for use to be paid).
Local court deemed reminder not admissible - tenants file appeal
The local court initially seised rejected the reminder by order dated 28 January 2016, as it was not admissible. Agreements restricting enforcement were to be asserted by way of an action to defend against enforcement, at least if the agreement (or its content) was disputed and could not be proven to be liquid. The local court did not uphold the debtor's appeal against this decision dated 31 January 2016 in its decision dated 1 February 2016, but instead referred it to the court of appeal.
Decision of the Regional Court of Frankfurt am Main:
The Regional Court also did not consider the reminder to be admissible, but rather the action to defend against enforcement
The Frankfurt am Main Regional Court, which dealt with the appeal, also dismissed the appeal. The debtor's objections to the eviction execution scheduled for 1 February 2016 would not prevail.
The Local Court had correctly stated that the disputed agreement restricting enforcement was to be asserted by way of an action to defend against enforcement and not by way of a reminder.
Furthermore, the rent certificate does not constitute a waiver of enforcement
Contrary to the debtor's opinion, the waiver of enforcement from the default judgement does not arise from the rent certificate of 10 December 2015 either. This standardised certificate would only confirm the current rent or compensation for use to be paid. It therefore does not provide any evidence of a continuing or newly established tenancy or of a waiver of enforcement. The reminder against the manner of enforcement pursuant to Section 766 ZPO is therefore unfounded.
Source: District Court of Frankfurt am Main
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