Extraordinary termination of the lease and the effect of the directly enforceable notarial deed of the lease agreement
1 Feb, 2021

The conclusion of a lease agreement for an apartment in a directly enforceable notarial deed allows the landlord to skip the stage of court proceedings and achieve the recovery of overdue obligations from the lease relationship in enforcement proceedings. However, despite the fact that the lessee (debtor) has explicitly agreed with the content and direct enforceability of the notarial deed, the lessor will not succeed in the enforcement proceedings with a request to vacate and deliver the leased object.

The obligation to hand over the object of the lease arises only when certain legal facts occur that cause the termination of the lease and not with the occurrence of the lease itself. In case of early termination of the lease contract (eg due to culpable reasons on the part of the tenant), in addition to the general rules of the Code of Obligations, special and mandatory provisions of the Housing Act (SZ-1) must be observed. with a lawsuit (Article 112 SZ-1). Recent case law has taken the view that such a coercive nature is determined in the event of termination of a tenancy in a dispute, ie when the tenant does not agree to the termination of the contract and does not voluntarily vacate the apartment, defined for the protection of the public interest of social security. a legal consequence that interferes extremely intensively with the social status of the tenant. The court therefore decides on the justification of the cancellation. Recognizing the effect of direct enforceability on eviction from a dwelling in the event of a dispute would mean that the creditor can circumvent such a coercive arrangement. The executive address for eviction from the apartment as a consequence of the termination of the lease due to extraordinary termination can only be a (final) court decision, so the creditor will have to obtain an executive title for the debtor’s eviction in court proceedings after filing a lawsuit. No. I Ip 3435/2017, of 5 March 2018).

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