What is the landlord's lien?
Property owners have to take care of a variety of issues if they want to offer their property for rent or lease. For example, they have to make sure that the electricity and water are working properly or that the tenants in the building adhere to contractually agreed quiet periods. Despite all efforts, unforeseeable and unpleasant situations occur time and again for the landlord: the tenant does not pay - whether rent or service charges. The landlord is often left with the loss of rent. However, the legislator has established a remedy for this: the landlord's lien.
With the landlord's lien, the landlord can secure claims
The landlord's lien gives the landlord the right to secure claims arising from the tenancy. It primarily relates to the furnishings. Excluded from this are items that the tenant urgently needs for everyday life - for example, the refrigerator, washing machine and even the television may not be seized. The prerequisite is that a valid tenancy agreement exists and that the landlord has a claim against the tenant that is due. This is the basis for exercising the landlord's lien. Caution is advised in the case of co-ownership by the tenant!
Rent claims, BKA claims, damages or claims due to lack of cosmetic repairs
Claims from the tenancy can arise, for example, from rent claims, claims for back payments from utility bills, claims for damages after damage or also due to cosmetic repairs that have not been carried out.
It is good to know that the landlord's lien also covers time-barred claims, section 216 (1) BGB. However, rent arrears that are time-barred as so-called recurring payments are not included, Section 216 (3) BGB. As soon as the landlord's lien is asserted, it also relates to future claims - for example, payment of rent (BGH, judgement of 14 December 2006, IX ZR 102/03). However, a legal time limit has been set for this. The landlord's lien cannot be asserted for future compensation claims such as compensation for use in the event of withholding of the rented property in accordance with § 546a BGB (OLG Rostock, decision of 8 June 2007, 3 W 23/07, WuM 2007 p. 509) or in the event of loss of rent. It should be noted that a rent claim is also secured for a maximum of 24 months and that the current year and the rental year may not always coincide with the calendar year.
However, the landlord's lien does not only apply to residential tenancies, but also to commercial premises.
What conditions apply to the landlord's lien?
Of course, a landlord cannot simply arbitrarily withhold items belonging to the tenant from the rented property if, for example, the tenant owes him rent. There are important requirements that must be met in order to apply the landlord's lien. One prerequisite for the seizure of items within the meaning of Section 90 BGB (movable and immovable property - i.e. not real estate or land) is that the items have been placed in the rented premises by the tenant on a more than temporary basis. However, this may also include bearer securities or money. Items that are not intended to remain in the rented property for the duration of the rental period or for a longer period of time fall under items that are not brought in. This distinction is particularly important in the case of commercial residential property, but can be very difficult to define in individual cases.
They must also be the property of the tenant. For example, the landlord's lien does not apply to items belonging to the tenant's wife if she has not signed the tenancy agreement. Accordingly, each item needs to be analysed carefully, as further conditions apply in the case of co-ownership. The same applies to items belonging to the subtenant.
Tenant must be the owner and not just the possessor
This means that rented or borrowed items in any form may not be seized by the landlord, as the tenant only has possession of them but not ownership. All items and furnishings are exempt from seizure under § 811 ZPO. This statutory provision contains a list of certain items that are subject to seizure protection. In addition, a pocket watch, for example, may not be seized if the tenant has no other property apart from this watch.
If the landlord seizes items belonging to the tenant that are actually considered unseizable, the landlord is liable to pay compensation to the tenant. The landlord should therefore exercise caution, because even if he has a claim, this is not the end of the matter. It is advisable to engage a lawyer who will take a close look at your individual case and advise you individually.
The true legal situation must be determined, as this is decisive in order to avoid arbitrary seizures. The landlord is obliged to prove the existence of the right to seize. The tenant must prove the circumstances from which the non-seizability of the object is to result (OLG Düsseldorf judgement of 16.12.1998 - 11 U 33/98). This means that a landlord's lien cannot arise if the tenant makes an untrue declaration of ownership of the items brought in. The retention of title is particularly important here. However, there are circumstances in which the items may be seized despite a reservation of title. However, only the expectant right to which the tenant is entitled is covered. As soon as the purchase price is paid by the tenant, he also acquires full ownership. However, this is then encumbered with the landlord's lien, as the landlord's lien takes precedence over a transfer by way of security established after the item has been provided. This also applies to the case where the tenant disposes of present and future ownership of a tangible asset brought into a specific rental property during the rental period by means of a security transfer agreement in favour of the lender.
The principle of priority must always be observed for the various means of security. If items are brought in that have already been assigned as security, the landlord's lien is subordinate to this security property. This is because the landlord's lien cannot arise due to the tenant's lack of ownership of the items. Pursuant to Section 562b (1) BGB, the landlord may prevent the removal of items subject to the landlord's lien without recourse to the court. However, this does not apply to items that belong to a third party or are not subject to a lien.
Landlord can prevent the tenant from removing the items
If the landlord has a claim that is due and undisputed, he will in most cases have to limit himself to objecting to the tenant's removal. However, if the tenant continues, the landlord is entitled to prevent the removal of the items by locking the doors or similar measures. If this step is also unsuccessful, the landlord may even take the items from the tenant.
If the tenant removes a pledged item from the rented premises contrary to the landlord's objection, he may be liable to prosecution under Section 289 of the German Criminal Code (StGB). Tenants should always bear this in mind.
If the tenant moves out of the rented property, the landlord may take possession of the items encumbered with the landlord's lien. The landlord therefore has a far-reaching right of self-help. However, the limit to this is that he may not prevent the tenant from removing the items without his knowledge - for example by securing the front door with a mortise lock. The landlord's right to self-help only begins when the tenant starts to remove the items brought into the rented property and not before.
Landlord can claim surrender of the items in summary proceedings
Nevertheless, there are situations where the tenant has already removed items from the rented property without authorisation. In this case, the landlord requires a right of surrender, whereby he is dependent on the tenant providing information about the details of the property. The landlord can assert this claim for information together with the claim for restitution by way of an interim injunction with a step-by-step application. If the items have been removed without the landlord's knowledge or with the landlord's objection, the landlord may demand that they be returned to the rented property for the purpose of retrieval. If the tenant has moved out, the landlord can demand that possession be returned. It is important to note and always bear in mind that the landlord's lien expires one month after the landlord becomes aware of the removal of the items and has not previously asserted this claim in court.
The landlord's pledge is realised through sale by public auction. The bailiff is responsible for this. If the landlord's pledge has a market or exchange price, it can also be sold by private treaty in accordance with § 1221 BGB, but only by authorised persons.
The tenant can avert the assertion of the lien by providing security at the competent local court, for example by depositing a sum of money or a valuable item. In this way, the tenant can be released from the landlord's lien for each individual item pledged by the landlord by providing security in the amount of the material value.
The most important things at a glance:
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- Outstanding and due claims from ancillary costs, rent or claims for damages can help the landlord to assert these through the landlord's lien.
- If the movable items within the meaning of Section 90 BGB belong to the tenant, the tenant has brought them into the rented property and they are not subject to seizure protection in accordance with Section 811 ZPO, they can be confiscated by the landlord.
- The assertion of the landlord's lien can be averted by means of a security payment. This means that individual attachable items can also be "redeemed" by the tenant.
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Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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Lawyers in Cologne provide advice and representation in tenancy law.