Brazilian Primary Employment

Strict liability of the lessor with "cold" house clearance

The Federal today has taken a decision on the liability of the landlord if arbitrary evictions.

The plaintiff was a tenant located in Wiesbaden apartment of the defendant. From February 2005 he was absent for several months in places with unknown residence and was reported by relatives as missing. After the rent had not been paid for the months of March and April 2005, the landlord announced the lease without notice. In May 2005 she opened the apartment and took her in possession. Here, they disposed of some of the furnishings, another part of the things they found stored away with him. Based on an expert's report the tenant has asked for him missing after his statement during the evacuation or stolen, damaged or soiled items damages of € 62,000 plus reimbursement of its expert fees. The district court dismissed the action in that regard. The district court dismissed the appeal of the tenant.

directed against the revision of the tenant was successful. Who among other responsible for the Housing Tenancy Eighth Civil Division of the Federal Court held that the landlord is liable for the consequences of such clearance. Are not covered by a legal title, unauthorized possession of a home and the power of their own Overcome by the landlord make an illegal self-help (§ 229 BGB *); whereas the case even if the current whereabouts of the tenant is unknown and a contractual right of possession of the tenant has ceased due to termination. The landlord must also in these cases - where appropriate, after public notification of the eviction notice - and obtain an eviction action under this title. Does a landlord instead through a so-called "cold" a prohibited self-help eviction, he is under § 231 BGB ** regardless of fault for any resulting damage required.

is from this particular liability an arbitrary disposal of the collected objects found in the apartment. For the owner who takes an apartment without the presence of legal title to property is true for the objects in it a duty of care. Since the tenant taking possession of his apartment is unaware and therefore is not in a position to exercise his rights himself, continues to belong to this duty of care of the landlord that he draws up an inventory and establishing the value of the items therein. If he does this obligation is not sufficient for, he must refute the claim of the tenant, that certain objects were made in the evacuation of lost or damaged, and prove that they had a lower value than claimed by the tenant. This has ignored the district court and the tenant law in the pleading and proof in the Stock and condition imposed in the vacated apartment existing articles.

In addition, the district court has also spanned a damage estimate on the appropriate requirements. If - as in the case decided - fixed the alleged claim for damages on the merits, and its height is questionable, the claim must be dismissed not always complete. The court must judge in this case but after due consideration, whether at least the estimation of a minimum damage is possible. This is not the case here. The matter was therefore remanded to the district court so that the necessary findings on the value of stock and can be made during the clearing house if the plaintiff lost or damaged items.

* § 229 BGB: Support

Who takes away the purpose of self-help a cause, destroyed or damaged or who for the purpose of self-help a debtor, which the flight is suspicious, are arrested or the resistance of the debtor against an action that is required to submit to this eliminated, is not wrongful where magistrate help is not to have a timely and without immediate intervention, the risk that the achievement would frustrate the claim or much more difficult.

** § 231 BGB: Erroneous self-help

person who commits any of the acts listed in § 229 in the mistaken belief that exists for the exclusion of illegality necessary conditions are, is the other part to pay damages required, even if the error is due to negligence.

Case of 14 July 2010 - VIII ZR 45/09

AG Wiesbaden, Judgement of 15 May 2008 - 91 C 5169/06

LG Wiesbaden - Case of 21 January 2009 - 3 S 44/08

Source: Communication No 148/2010 of 14 July 2010, the press office of the Federal

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