The plaintiff was a tenant of a flat owned by the defendant in Wiesbaden. From February 2005 onwards, he was absent for several months with unknown whereabouts and was reported missing by relatives. After the rents for the months of March and April 2005 had not been paid, the landlady terminated the tenancy without notice. In May 2005, she opened the flat and took possession of it. In doing so, she disposed of part of the flat's furnishings; she stored another part of the found objects at her place. Based on an expert's report, the tenant claimed damages of approximately €62,000 for the items he claimed had been lost, damaged or soiled in the course of the eviction, plus the expert's fees he had incurred. The district court dismissed the action in this respect. The district court dismissed the tenant's appeal.
The tenant's appeal against this decision was successful. The VIII Civil Senate of the Federal Court of Justice, which is also responsible for residential tenancy law, ruled that the landlord is liable for the consequences of such an eviction. Civil Senate of the Federal Court of Justice ruled that the landlord was liable for the consequences of such an eviction. The unauthorised taking of possession of a flat and its unauthorised eviction by the landlord, which is not covered by a judicial title, constitutes unauthorised self-help (§ 229 BGB). This applies even if the tenant's current whereabouts are unknown and a contractual right of possession of the tenant has ceased as a result of termination. The landlord must also obtain an eviction title in these cases - if necessary after public service of the eviction action - and proceed from it. If a landlord instead exercises prohibited self-help by way of a so-called "cold" eviction, he is obliged to compensate for the resulting damage regardless of fault according to § 231 BGB.
This obligation to pay compensation covers in particular the unauthorised disposal of objects found in the flat. This is because the landlord who takes possession of a flat without a court order is obliged to take care of the objects in the flat. Since the tenant is not aware of the taking of possession of his flat and is therefore not in a position to exercise his rights himself, the landlord's duty of care also includes drawing up an inventory and determining the value of the objects included therein. If he does not sufficiently fulfil this duty, he must refute the tenant's claim that certain items were lost or damaged during the eviction and prove that they had a lower value than claimed by the tenant. The Regional Court overlooked this and erroneously placed the burden of proof and presentation on the tenant with regard to the inventory and condition of the objects present in the vacated flat.
Furthermore, the Regional Court also overstretched the requirements to be placed on an estimate of damages. If - as in the case decided - the asserted claim for damages is established on the merits and only its amount is questionable, the action may generally not be dismissed in its entirety. In this case, the court must rather use its discretion to assess whether it is not at least possible to estimate a minimum amount of damages. This was not done here. The case was therefore referred back to the Regional Court so that the necessary findings could be made on the inventory and the value of the objects lost or damaged in the course of the eviction of the plaintiff.
Judgment of the Federal Court of Justice of July 14, 2010 - VIII ZR 45/09
Previous instances:
Wiesbaden District Court - Judgment of May 15, 2008 - 91 C 5169/06
Wiesbaden Regional Court - Judgment of January 21, 2009 - 3 S 44/08
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: info@goldberg.de
