Can a bailiff enter a rented apartment?
The question of whether a bailiff can enter a rented flat is one of the most common concerns of people who live in a rented flat and are facing foreclosure. The answer is quite clear: yes, he can. The bailiff is not entering the apartment because the apartment is your property, but because he is there looking for the debtor’s property.
The decisive factor is whether the bailiff has a writ of execution – that is, a final court decision, arbitral award or other enforceable document on the basis of which the execution was ordered. Once the execution has been initiated, the bailiff may carry out a so-called mobile execution, i.e. an inventory of movable property in the place where the debtor resides.
It does not matter whether the apartment belongs to the debtor, his parents or is rented. What matters is whether it is the place where the debtor has his/her flat or other rooms, or where he/she has real property stored – the permanent residence is typically only one of the clues for the bailiff. If it is necessary for the purpose of the execution and the person on the spot is not cooperating, the bailiff is entitled to arrange access (typically with a locksmith, and, depending on the situation, with the assistance of the police). In addition, an audio-visual recording is made during the search of the flat and rooms and the persons present must be informed of this.
It is important to understand that the bailiff is acting against the debtor, not the landlord. The landlord is not liable for the tenant’s debt, and the foreclosure does not affect the tenant’s property – unless it is mistakenly included in the inventory.
If you are unsure whether the bailiff is proceeding legally or whether foreclosure is even warranted, we recommend consulting an attorney as soon as possible. Early action can prevent unnecessary damage.
What can the bailiff seize in a rented apartment?
In the context of a mobile execution, the bailiff may list and subsequently seize movable property belonging to the debtor. In practice, however, a problem arises: the law is based on the presumption that the items located in the place of residence belong to the debtor. This can be particularly problematic in a rented apartment.
For example:
- electronics (televisions, laptops, games consoles),
- jewellery and valuables,
- collections, luxury furnishings,
- vehicles (which subsequently leads to, for example, auctions of cars from foreclosures),
- other movable items of value.
Conversely, there are items that cannot be seized. These include, in particular, items necessary to meet the basic needs of life – ordinary clothing, medical supplies, basic household equipment or things needed for a profession.
The law also protects the so-called non-seizable minimum. While this primarily applies to deductions from wages, it expresses the principle that the execution must not deprive the debtor of the means necessary for basic living.
In practice, it is often the case that the bailiff also seizes items of which he is not sure of the ownership. For example, if a television belongs to the landlord and there is no proof of this, it may be included in the inventory. It is therefore advisable to have a handover report and ideally a list of equipment attached to the tenancy agreement.
If a bailiff lists or seizes property that does not belong to the debtor, the beneficial owner can file a motion to remove the item from the inventory – and do so within 30 days of learning of the inventory. If the bailiff does not comply, there is still the exclusion action in court.
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What happens to confiscated items?
Once the bailiff has inventoried and secured the movables, the next stage is to monetise them. The most common form today is foreclosure auctions, which take place as public foreclosure auctions.
The procedure is usually as follows:
- Writing down and valuation of the property.
- Announcement of the auction.
- Publication on the auction portal.
- Sale by physical or electronic auction (e-auction).
- The proceeds are used to pay the debt.
Currently, most sales take place online, i.e. as e-auctions. These take place through specialised systems and are publicly accessible. Anyone who fulfils the conditions and deposits an auction security can participate.
For example, auctions of repossessed cars are very popular, where vehicles are often sold for less than their normal market value. Similarly, sales of electronics or other valuable property also work.
It’s important to know that once an item is sold, it’s not easy to get it back. So if you want to prevent a sale, you need to react quickly – for example, by filing a motion to stop foreclosure or by agreeing on repayments.
When does the non-forfeitable amount come into play
In addition to the seizure of movable property, deductions from wages or account attachments are also very common. This is where the notion of an uncollectible amount comes into play.
The non-dischargeable amount is the amount of money that must be left over from the debtor’s income. It is based on the minimum subsistence level and the cost of living. Calculating the amount to be forfeited is not always straightforward, as it takes into account, for example, the number of dependants.
A distinction is also made between priority and non-priority claims. For priority claims (e.g. maintenance), deductions are higher.
For deductions from wages (and similar income), it is important to know that not all income is treated equally – some types of benefits and income may have special treatment or may only be affected to a limited extent. If you’re not sure what all counts in the calculation, it’s worth checking, as a miscalculation can have significant implications for the debtor and the family.
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The most common myths about foreclosure in rentals
There are a number of inaccuracies circulating around evictions that can make the situation unnecessarily worse.
- A bailiff can seize an entire apartment. – In fact, he can only seize movable property belonging to the debtor, not the rented apartment itself.
- The landlord must pay the tenant’s debt. – This is not true. The landlord is not liable for the tenant’s debts unless he has expressly agreed to do so.
- If I change my residence, the bailiff can’t come. – The bailiff looks at the actual residence, not just the record.
- If I “transfer” things to my partner, they’re safe. – Purposeful transfers of property can be challenged and can make the situation worse.
These misconceptions often lead to ill-advised actions. It is much more effective to deal with the situation systematically – for example, by negotiating a repayment plan or filing a motion to stop foreclosure.
When do you need a lawyer?
Foreclosure is a legally and practically demanding process. Professional help is particularly worthwhile if:
- a mobile execution is in progress,
- foreclosure auctions are imminent,
- a writ of execution has been issued and you doubt it,
- a foreclosure auction has been announced,
- you want to stop e-auctions,
- you disagree with the calculation of the amount to be forfeited.
An attorney can review the legality of the foreclosure, propose a stay or postponement, negotiate payments or prepare a defense against unwarranted interference.
Don’t wait until your items are posted on an auction portal. The sooner you begin to address the situation, the better your chances of protecting your assets and income.
Summary
A bailiff can enter a rented home if the debtor is actually present or has a registered residence there, based on a valid enforcement order; if the debtor is uncooperative, he can also gain access with the assistance of a locksmith or the police and make a record of the process. In the context of a mobile execution, it can inventory and subsequently sell movable property belonging to the debtor (e.g. electronics, valuables or vehicles), but not the apartment itself or the property of the landlord or roommates, although the law is based on the presumption that the items in the residence belong to the debtor. Items necessary for the basic necessities of life and the exercise of a profession are not attachable; cash is protected up to the legal limit. If someone else’s property is included in the inventory, the beneficial owner may defend himself by a motion to strike the property from the inventory (within 30 days of becoming aware of the inventory) and, if necessary, by an exclusion action. Seized items are generally sold at public (often electronic) foreclosure auctions and the proceeds are used to pay the debt; after the sale, it is complicated to return the item, so it is necessary to respond in a timely manner, for example, by a motion to stay or postpone the foreclosure or an agreement on installment payments. In addition to seizures, there may be deductions from wages or attachment of accounts, leaving the debtor with a non-forfeitable amount, the amount of which depends on the legal parameters and the number of dependants. The landlord is not liable for the tenant’s debts (unless he has undertaken to do so) and a change of residence will not in itself prevent enforcement; if there is any doubt about the legality of the procedure or the calculations, it is advisable to contact a lawyer and deal with the situation as soon as possible.
