House Auction with owner still occupying

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An apartment I want is coming up for auction, and the owner is still occupying the apartment. They are being foreclosed for not paying their Hausgeld or property tax for several years. They do not open the door or answer correspondence. The auctioneers and the Hausverwaltung have zero information about who is in the apartment, even, but it is assumed to be the owner themselves. A shut-in, effectively.

 

Unlike a sitting tenant, they will have no contractural right to remain in the property as soon as the new owner takes possession. Questions being: can the new owner just rock up with a locksmith the first time they go out to buy groceries? Or do they have to hire some kind of official bailliff to remove the newly-designated squatter? If I am the successful bidder, what are my rights regarding right of entry, and responsibilities regarding the safety of the person, and their personal property (which as contents become 'mine' on purchase)? Will the police assist if the person turns out to be aggressive, for instance, or will they refuse to get involved?

Call me an asshole if you want to, but the person in the apartment is in the same situation whether I buy the apartment, or - more likely - a Chinese consortium or an estate agent. They might be better off with me!

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Before anyone gets righteous I should point out the occupier is NOT destitute. They own two apartments and both are being auctioned. They could sell one to finance the other, but they haven’t. The problem is lack of will or motivation, not lack of money. They have had several years to sort out their affairs.

Jack Spades.

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Please be very careful. I know of a case where someone bid on an apartment which was up for auction. It was occupied by tenants but the owner (landlord) had not paid the mortgage so it was put up for auction.

 

To cut a long story short. It took the new owners well over 2 years to get the tenants out, even though they had the right of "Eigenbedarf". In Germany people are very well protected.

 

I recommend speaking to a professional lawyer about the circumstances.

 

Another issue is, you may not be able to see what it looks like inside as the occupiers might not let you see it. This means you cannot really see what it is like inside, what repairs need to be done let alone get a surveyor to look at it.

 

 

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3 hours ago, Jack Spades said:

Unlike a sitting tenant, they will have no contractural right to remain in the property as soon as the new owner takes possession.

 

This may be the case but it does not alter the new owner's obligation to comply with the legal process standards wrt obtaining an eviction order.

 

Quote

Questions being:

1 ) can the new owner just rock up with a locksmith the first time they go out to buy groceries?

2 ) Or do they have to hire some kind of official bailliff to remove the newly-designated squatter?

3 ) If I am the successful bidder, what are my rights regarding right of entry, and responsibilities regarding the safety of the person, and their personal property (which as contents become 'mine' on purchase)?

4 ) Will the police assist if the person turns out to be aggressive, for instance, or will they refuse to get involved?

 

1 ) No! There is defined case law set by the Bundes Gerichthof (highest federal court) in respect of such action which effectively puts landlords attempting such tactics on notice of substantial penalties. See quote below for more details.

 

2 ) This may not be strictly neccessary but could prove the most economic and least troublesome method to follow up on the primary stage of obtaining an eviction order (Räumungstitel) from the court.

 

3 ) You may not enter by force nor use force to remove the current resident nor risk damage to their personal possesions, goods and chattels. You may even be held responsible for secure storage of such material items. Managing such situations are often areas of law where using the services of a court appointed bailiff (Gerichtsvollzieher) becomes a no-brainer.

 

4 ) By prior arrangement the police will attend such evictions in order to prevent potential breaches of the peace. Gerichtsvollziehern usually turn up with a locksmith and 2 police officers in tow to such evictions.

 

Quote

BGH-Urteil: Vermieter haftet verschuldensunabhängig für durch "kalte" Wohnungsräumung entstandenen Schaden an Mietsachen - Vermieterpfandrecht

zu BGH, Urteil vom 14.07.2010 - VIII ZR 45/09.

Der Achte Zivilsenat des Bundesgerichtshofs hat bei einer eigenmächtigen ("kalten") Wohnungsräumung die verschuldensunabhängige Haftung des Vermieters für die Folgen einer solchen Räumung angenommen. Denn die nicht durch einen gerichtlichen Räumungstitel gedeckte eigenmächtige Inbesitznahme einer Wohnung und deren eigenmächtiges Ausräumen durch den Vermieter stellten eine unerlaubte Selbsthilfe im Sinne des § 229 BGB dar. Das gelte selbst dann, wenn der gegenwärtige Aufenthaltsort des Mieters unbekannt und ein vertragliches Besitzrecht des Mieters infolge Kündigung entfallen sei. Der Vermieter müsse sich auch in diesen Fällen - gegebenenfalls nach öffentlicher Zustellung der Räumungsklage - einen Räumungstitel beschaffen und aus diesem vorgehen.

 

In a case like this which involves a compulsory auction by official order (Zwangsversteigerung von amtswegen) the local Amtsgericht will have an active file (Akten) with file number (Aktenzeichennummmer = Az-Nr.) on record.

 

So you should take all the related documents you have along with a recent (max 90 days old) copy of your own registration (Meldebescheinigung) and ID (passport) to the Amtsgericht and apply to the designated Gerichtshelfer (Rechtspfleger) for help with completing an 'Antrag formular für Räumungsklage'

 

2B

 

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I have heard of landlords just paying the squatters to move.  Make the a serious offer and you might end up saving money in the end (and a whole lot of hassle).

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You wouldn´t be a landlord to the previous owners. So I´m not sure whether the abovementioned court ruling applies in cases of foreclosure as there are different rules. I seem to remember that you´ll have to act swiftly, but don´t remember in what way.

I´d ask the Rechtspfleger at the court. They should tell you the "terms and conditions".

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I looked into this a year ago when a friend of mine bought a house at an auction.  After you have the highest bid and you pay, the owner can make a complaint about the auction not having been done in a proper way, I believe within 3 weeks.  If they do, it can take a few more weeks for the courts to decide if they will honour their complaint or not.  A complaint can not be made based on the owner now having the money to pay his debts, it can only be made based on there having been some legal mistake in the carrying out of the auction. 

 

Once you are clear of complaints, you get some paperwork stating that you have bought the house at auction.  This piece of paper acts as a verdict of eviction against the owner (räumungstitel).  You can take these papers straight to a court bailiff and ask them to evict the owner.  The court bailiff will contact the owner and normally give them 3-4 weeks to leave.  If they don't leave, they will be moved out at your cost, that is, the court bailiff will show up with a moving company, move their stuff to a storage, make them leave, change the locks and give you the keys.  This could cost a few thousand euro.

 

However, be aware that the owners could have complicated things by for example having made a rental agreement with a friend or relative who is now your tenant and you would have to give that person a proper notice of 3 months and if they don't leave, get a verdict of eviction against them in court which can take another few months.  The owner could also trash the place. 

 

You should not try to break into the place yourself and you should not consider the owners personal property as something belonging to you just because you bought the apartment.  The reason why you need the court bailiff is because they oversee that the contents of the apartment are properly handled and stored.

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Some comprehensive and useful advice, thanks! Seems like I should put aside a contingency for eviction costs as well. My thought was that estate agents would avoid the hassle in this particular case and private buyers might have a chance. 

Min not overly worried about the structure etc. because I already own a place in the same complex. I am prepared for shut-in levels of debris and neglect. The biggest concern is a sub-tenant, though I doubt someone who can’t get it together to pay Hausgeld could navigate a tenancy agreement.

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13 hours ago, 2B_orNot2B said:

Der Achte Zivilsenat des Bundesgerichtshofs hat bei einer eigenmächtigen ("kalten") Wohnungsräumung die verschuldensunabhängige Haftung des Vermieters für die Folgen einer solchen Räumung angenommen. Denn die nicht durch einen gerichtlichen Räumungstitel gedeckte eigenmächtige Inbesitznahme einer Wohnung und deren eigenmächtiges Ausräumen durch den Vermieter stellten eine unerlaubte Selbsthilfe im Sinne des § 229 BGB dar. Das gelte selbst dann, wenn der gegenwärtige Aufenthaltsort des Mieters unbekannt und ein vertragliches Besitzrecht des Mieters infolge Kündigung entfallen sei. Der Vermieter müsse sich auch in diesen Fällen - gegebenenfalls nach öffentlicher Zustellung der Räumungsklage - einen Räumungstitel beschaffen und aus diesem vorgehen.

 

 

Wow, even if the owner / occupier is untraceable! This would have applied in an auction I attended recently where the owner was 'last heard of in the far east' and the tenant of thirty years was having the place sold around him. In that case it was bought by a foreign consortium, for considerably more than it was worth!

 

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Regarding the goods and chattels, my first thought would be to shovel anything of value into the Keller and give the occupier a reasonable time (1 month? three months?) to organise collection. Alternatively (asshole mode) buy 1 month's worth of container storage and hand them the container key and the contract.

 

Thing is, I doubt this person is going to be able to re-house themselves, let alone organise a move.Supposing they just stand in the street and cry, could I bring them to local housing shelter? I guess the police and the bailiffs don't give a damn.

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I did a lot of research on this just over a decade ago, because we bid on a property that went up for auction after the divorcing couple who lived there couldn't agree on a sale price.

 

The laws quoted above about your ability to evict a tenant from a property bought at auction don't apply in the case of an owner-occupier. That means Jeba's information is correct, Anna66's and 2B's information is not relevant. As soon as the auction results are certified, you (or your lawyer) can go to court and get an eviction notice, which can be served by the bailiffs immediately. If the former owner refuses to leave, he can be forcibly removed by the authorities.

 

That means your main risk is buying a property sight-unseen. The owner could be a hoarder/messy, for example, or he could decide to trash the place before leaving. I don't believe you have any recourse or claim for compensation from him in that case, because it was his property until after the auction (I may be wrong on this detail, however).

 

So IMO the main contingency you need to plan for is renovation, but that's really part of buying any existing property, so hopefully you'll have planned for that already.

 

Because this is Germany, I need to add that I'm not a lawyer and the above cannot be construed as proper legal advice, which you can only get from a licensed attorney.

 

Best of luck at the auction.

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If the former owner refuses to leave, he can be forcibly removed by the authorities.

 

Ah but what 'authorities' El Jeffo? I don't expect the police or the Stadt to care who's inside a private apartment. The Hausverwaltung will expect me to start paying Hausgeld right away, so the place is a net loss until I can take possession and make it habitable for a tenant.

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In reference to the current owner trashing the place after eviction...

 

You could instruct the bailifs to photograph the condition of the property upon serviing the eviction notice...

 

Then they would or could possibly be charged with criminal dammage...

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Years ago I helped friends move into a place that had had squatters.They'd never turned on the water (try not to imagine the state of the plumbing) and they'd lit bonfires in the middle of the wooden floors. Whatever is there when the door opens could never be as bad at that!

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1 hour ago, Jack Spades said:

 

Ah but what 'authorities' El Jeffo? I don't expect the police or the Stadt to care who's inside a private apartment. The Hausverwaltung will expect me to start paying Hausgeld right away, so the place is a net loss until I can take possession and make it habitable for a tenant.

A process server (bailiff) can request the assistance of the police to enforce an eviction notice. But yes, you're right, there are always risks involved in buying a property at auction, especially one that no one has been able to inspect beforehand. You might get a bargain or you might get it up the ass.

 

59 minutes ago, MikeMelga said:

What everyone forgot to say is that if the current tennant has a disability status, you cannot kick him out.

Only if the current tenant isn't the owner, which seems to not be the case. But yes, Jack Spades said that the Hausverwaltung doesn't even know who's living there, so the chance that it might be a tenant - who would be much more difficult to get out - is real. Another risk.

 

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1 hour ago, Jack Spades said:

Regarding the goods and chattels, my first thought would be to shovel anything of value into the Keller and give the occupier a reasonable time (1 month? three months?) to organise collection. Alternatively (asshole mode) buy 1 month's worth of container storage and hand them the container key and the contract.

 

Thing is, I doubt this person is going to be able to re-house themselves, let alone organise a move.Supposing they just stand in the street and cry, could I bring them to local housing shelter? I guess the police and the bailiffs don't give a damn.

 

Putting their stuff in the Keller yourself can result in charges that you have stolen or damaged some of the owners items. If you think the owner will not fight back and knows noone who will help him, it's up to you if you want to take your chances.

 

I know someone who evicted a non paying tenant himself. He entered the apartment with friends as the tenant was at work and took all his property to a garage on the property and then started renovating. As the tenant came home from work he found the apartment empty and without a front door and a toilet. This is of course extremely illegal but he was lucky and got the tenant out fast without any costs. Tenant didn't even pick up his things from the garage.

 

I don't know what the bailiff will do if the person has nowhere to go. I guess if they look mentally ill or having a breakdown they might call an ambulance.

 

If you do want to buy it, definitely figure in extra costs. In some areas in some cases apartments at auction are going for higher than market price so you'll have to figure out when you want to stop bidding 

 

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In some areas in some cases apartments at auction are going for higher than market price

This has been the case in several auctions I've recently sat in on. A bidder down from Frankfurt said *everything* there is being bought by Chinese people, and they don't care what they spend. Only hearsay.

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My personal advice: This one isn't worth the risk.

 

Back when we were looking to buy, in the mid 2000s, I monitored the Zwangsversteigerung calendars intensely. I never bothered with the ones that said the property couldn't be assessed or accessed beforehand. The only reason why we considered bidding on the one we did is because it was actually opposite the apartment where a friend of mine lived, so I knew everything about the circumstances and the building history, knew it was vacant (both spouses had already moved out), and was even able to arrange a viewing beforehand. In the end, we got outbid by someone else - his wife was giving him the side-eye the entire time - for way more than the "recommended" auction price. According to my friend, he ended up selling it again two years later, at a loss. But by that time, we had already found a place, through the regular market, where we've lived ever since.

 

It all depends on how risk-friendly you are, of course, but if you're worried about having to pay the utility fees immediately after the auction without being able to collect rent, it doesn't sound like you have money to burn if anything goes wrong. For me, no one having access to the property before the auction and not even knowing if it's currently tenanted would be two giant red flags.

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