Tenancy Law: Successful application for protection against eviction due to the tenant’s risk of suicide.

Federal Court of Justice, May 15, 2014, Case No.: I ZB 15/13

If a landlord has obtained a judgment for possession against a tenant and is enforcing an eviction, the tenant may, in certain situations, still have a final legal remedy against the impending eviction.

This remedy is the application for protection against eviction under Section 765a of the German Code of Civil Procedure (ZPO). If this application is granted, the tenant may remain in the apartment for a specified period.

Reasons for an Application for Protection Against Eviction

In the application for protection against eviction, specific reasons must be stated that make it unreasonable for the tenant to vacate the premises at the scheduled time.

These reasons may include:

• • • • A new apartment can be moved into shortly after the eviction date.
      • The debtor is on maternity leave at the time of eviction.
      • Suicide risk due to eviction.
      • Epileptic seizures are likely to occur after eviction.

When assessing an application for protection against eviction, the court must always consider the fundamental rights of the property owner (landlord) to protection of property (Article 14, Paragraph 1 of the Basic Law) and to effective legal protection (Article 19, Paragraph 4 of the Basic Law).

It should be noted that an application for protection against eviction under Section 765a, Paragraph 3 of the ZPO must be filed no later than two weeks before the scheduled eviction date, unless the reasons on which the application is based arose after this time, or the debtor was prevented from filing the application in time through no fault of their own.

In the aforementioned decision of the Federal Court of Justice, the court had to decide on an application for protection against eviction filed by a tenant who was at risk of suicide.

Facts of the Court’s Ruling

The debtors were ordered by the Frankfurt (Oder) Regional Court in an eviction case to hand over a property with a residential house. Based on the judgment, the creditors then enforced the eviction against the debtors.

Applicants File Application for Protection Against Eviction Due to Suicide Risk

By letter dated August 25, 2008, the debtor applied for protection against eviction at the Fürstenwalde District Court. In response to this application, the Fürstenwalde District Court initially suspended the enforcement proceedings on the condition that the debtor provide a medical certificate or expert opinion on the possibility of eviction with thorough medical supervision. After the debtor failed to fulfill this condition, the Fürstenwalde District Court dismissed his application for protection against eviction.

The debtor then appealed this decision. The appellate court subsequently obtained a neurological-psychiatric expert opinion on the debtor’s ability to proceed with the case.

The appointed expert concluded that the debtor suffered from a partial incapacity due to illness, which specifically related to the legal dispute over the property.

Applicant is Incompetent to Stand Trial

The appellate court then, by order dated August 25, 2009, temporarily suspended the enforcement proceedings, stipulating that they could be resumed if the debtor’s current incapacity to stand trial ceased or if the debtor were effectively represented. The creditors, in turn, filed an appeal against this order, which was admitted by the appellate court.

The Federal Court of Justice appointed attorney K. B. as the debtor’s special representative (guardian ad litem) and overturned the order of August 25, 2009, remanding the case back to the appellate court with the reasoning that the enforcement proceedings could not be temporarily suspended under Section 765a ZPO if the debtor was incompetent to stand trial.

The guardian ad litem, in turn, did not approve the application for protection against enforcement filed by the debtor himself. By order dated October 20, 2011, the appellate court dismissed the debtor’s immediate appeal against the order of the Fürstenwalde District Court of November 4, 2007.

The creditors then continued with the enforcement of the eviction. On January 3, 2012, the guardian ad litem filed another application for protection against enforcement under Section 765a ZPO on behalf of the debtor, arguing that the forced eviction would significantly endanger the debtor’s life and health (cardiac arrest, stroke, or suicide).

By order dated January 12, 2012, the District Court appointed attorney Bl. as the debtor’s new guardian ad litem in place of attorney B. By another order on the same day, it dismissed the application for protection against enforcement filed on January 3, 2012.

The new guardian ad litem immediately appealed this decision, submitting a medical opinion from specialist Dr. H., stating that suicide by the debtor was imminent if the forced eviction were carried out and that even involuntary commitment to a psychiatric hospital would not prevent it, as the debtor’s mental illness was untreatable.

Das Landgericht stellte daraufhin die Zwangsvollstreckung bis zur Entscheidung über den Vollstreckungsschutz einstweilen ein und holte ein neurologisch-psychiatrisches Gutachten zur Frage der Gesundheits- und Lebensgefahr im Fall der Zwangsräumung ein.

The Regional Court then temporarily suspended the enforcement proceedings pending a decision on the application for protection against enforcement and obtained a neurological-psychiatric expert opinion on the risk to the debtor’s health and life in the event of eviction.

By the contested order of January 22, 2013, the Regional Court then indefinitely suspended the enforcement proceedings with respect to the judgment ordering the surrender of the property, without imposing any conditions.

The creditors appealed this decision to the Federal Court of Justice.

Federal Court of Justice Decision

The Federal Court of Justice ruled that the creditors‘ appeal was dismissed except for the lack of a time limit on the suspension of the enforcement proceedings.

Concrete Suicide Risk Exists in Case of Forced Eviction

The appellate court’s conclusion that a concrete suicide risk existed for the debtor if the eviction were carried out did not reveal any legal error.

Based on the expert opinions of Ba., Dr. H., and Dr. L., the appellate court was convinced that the debtor suffered from a delusional disorder, which would likely result in suicide if the eviction were carried out. This conclusion would withstand review in the appeal proceedings.

In this respect, the appellate court’s judgment was based significantly on the medical opinion submitted by the debtor’s guardian ad litem from Dr. H., the district medical officer. Although Dr. H. had refused a court appointment as an expert because he was personally acquainted with the debtor and therefore felt biased

this did not render Dr. H.’s opinion inadmissible. Rather, the appellate court was required to consider and evaluate it as part of the case.

The appellate court did not see Dr. H.’s acquaintance with the debtor as a reason to dismiss his professional assessment as merely a favor. It based its judgment on Dr. H.’s role as the responsible district medical officer and his thorough and competent work known to the court from numerous other cases. This judicial evaluation did not reveal any legal errors. It was irrelevant whether a different assessment would also have been possible.

Contrary to the creditors‘ argument, it was not objectionable for the appellate court to request an assessment based on the case files from court-appointed expert Dr. L., specifically instructing him to consider Dr. H.’s medical opinion. The debtor had refused a personal examination by Dr. L. The personal impression gained by specialist Ba. during a hearing before the appellate court was more than three and a half years old. The only recent personal examination of the debtor was conducted by Dr. H. on January 16, 2012. Under these circumstances, the appellate court’s procedure did not reveal any legal error.

Whether the expert Dr. L. could have gained significant new insights into the suicide risk through a personal examination of the debtor, as opposed to his case file-based report, could remain undecided.

Because of the debtor’s conduct, Dr. L. had no opportunity for a personal examination. The appellate court took into account the fact that Dr. L.’s report was not based on a personal impression of the debtor.

The appeal was also unsuccessful in challenging the appellate court’s consideration of the expert report by Ba. dated July 20, 2009.

Although this report was based on a personal impression of the debtor during a hearing before the appellate court on April 29, 2009, which was nearly four years old at the time of the appellate court’s decision on January 22, 2013, and although the expert Ba.

Ba. had been tasked solely with assessing the debtor’s capacity to proceed in the eviction dispute, the report’s findings on the debtor’s suicide risk were made outside the scope of this assignment.

These circumstances, however, did not render the Ba. report inadmissible. Instead, they were to be considered in its evaluation. There was no indication or evidence that the appellate court overlooked this.

The appellate court confirmed the medical evaluations through its impression of the debtor during the hearing on April 29, 2009, and the debtor’s written submissions in the eviction proceedings. This judicial assessment did not reveal any legal errors, contrary to the appeal’s argument.

To the extent that the appeal challenged the appellate court’s evaluation of the debtor’s letter dated July 10, 2012, arguing that it indicated a willingness to vacate the property in exchange for €300,000, the appeal merely substituted its own judgment for that of the appellate court.

The same applied where the appeal sought to construct a contradiction between the appellate court’s findings that there was insufficient evidence for calculated behavior by the debtor but that he purposefully shielded his wife from the eviction proceedings. These findings were not mutually exclusive.

The appeal also criticized the appellate court’s use of the phrase „state-sanctioned assisted suicide“ in its balancing of interests as inappropriate. Although this was an unusually stark expression by the appellate court, it was not evident that this phrase had decisively and legally erroneously influenced the court’s weighing of the creditors‘ property interests against the debtor’s life interest.

However, the appeal was successful in challenging the appellate court’s indefinite suspension of the enforcement proceedings.

Permanent Suspension of Eviction Enforcement Contradicts Property Guarantee

The creditors‘ interest in continuing the proceedings, protected by the fundamental rights to protection of property (Article 14, Paragraph 1 of the Basic Law) and to effective legal protection (Article 19, Paragraph 4 of the Basic Law), prohibits a permanent suspension of the eviction enforcement, as the state’s duty to protect the debtor’s life cannot be resolved indefinitely by prohibiting enforcement.

The suspension must therefore be limited in time and subject to conditions aimed at restoring the debtor’s health. This applies even if the prospects for improving the debtor’s health are limited.

In the creditor’s interest, the debtor is required to seek to improve his health and to provide evidence of his treatment status to the enforcement court.

It was not apparent why a permanent suspension of eviction enforcement should be considered in this case, contrary to these principles. In particular, the appellate court’s argument that it could not currently predict when the situation regarding the life-threatening risk in the event of eviction would change did not justify an indefinite suspension of enforcement.

The creditors could not be required to wait until they successfully applied to the enforcement court for the lifting of the suspension due to a change in circumstances (Section 765a, Paragraph 4 of the ZPO) before resuming the eviction.

Instead, it is the responsibility of the debtor to demonstrate and prove that the conditions for a temporary suspension still exist after the expiration of a reasonably limited temporary suspension.

It could also not be assumed that a treatment of the debtor to avert the suicide risk would be hopeless without further examination. The court-appointed expert Dr. L. had stated that the suicide risk could be reduced or minimized under inpatient conditions and that at least the acute suicide risk in the time frame of the eviction could be addressed through inpatient crisis intervention.

The expert also did not assume that the treatment of the debtor’s delusional disorder was hopeless. Instead, he described the outcome of the treatment as uncertain. However, at another point in his report, he suggested that there was no recognizable prospect of successful treatment for the delusional disorder.

Treatment options for the delusional disorder, however, are separate from the question of the acute suicide risk during the eviction. The delusional disorder may exist even without simultaneous suicide risk during eviction.

Given the circumstances of the case, it was therefore necessary and appropriate to limit the temporary suspension to three years from January 12, 2012, the date of the appellate court’s decision.

Source: Federal Court of Justice

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