The forced eviction of the tenant
Article proposed by Lex Thielen, Attorney at the Court.
In the event that the tenant refuses to release the rented house at the end of the lease, the landlord may be authorized by the judge to evict the tenant. The law of 21 September 2006 on the lease for residential use provides for special rules, both for the judicial authorization to proceed to expulsion for the protection of persons sentenced to evade and the safeguarding of their furniture.
A. The procedure of forced eviction
The procedure before the judge to obtain deportation authorization differs depending on whether the lease was terminated for personal need or for any other reason. Remember in this context that the reason for termination must be indicated by the lessor in the termination letter.
1. Expulsion in case of termination for personal need
It must be distinguished according to whether or not the tenant has requested an extension of the lease cancellation period.
a) The tenant has not requested an extension of the lease cancellation period
If the tenant has not requested, within 3 months of the notice of receipt at the post of the termination of the lease for personal need, an extension of the period of termination to the justice of the peace, the landlord may ask the latter a decision authorizing the forced eviction of the tenant after the expiration of the cancellation period which is 6 months. In this case the law expressly excludes the possibility of appeal or opposition against the decision authorizing the forced eviction of the tenant.
The decision of eviction from the judge must be filed with the executory formula to be executed by the bailiff.
In this case, the tenant can still submit a request for a stay of execution of the eviction decision. In case of request for such a stay by the tenant, the eviction must imperatively take place no later than 15 months after the date of sending the letter of termination.
b) The tenant has requested an extension of the term of cancellation of the lease
If the tenant has applied to the justice of the peace for an extension of the cancellation period, the decision granting or refusing the extension of the period is automatically enforceable for the eviction of the tenant after the expiry of the time limit which is:
> the normal period of 6 months in the event of a decision to refuse the extension;
> the deadline as extended by the judge, but this extension can not in any case exceed by 12 months the date of expiry of the initial period of 6 months.
The termination period elapsed, the lessor may instruct a bailiff to forcibly evict the tenant if he has not yet released the premises, without further application to the justice of the peace, on the basis of the expedition the decision of the judge granting or refusing the extension.
It should also be noted that if the tenant has submitted a request for an extension of the cancellation period, he will no longer be able to request a stay of execution of the eviction.
2. Expulsion in other cases of termination of the lease
If the termination of the lease was made for the fault of the lessor, for serious and legitimate reasons, or by mutual agreement, we fall into the common law because the law on the lease for residential use does not prescribe specific rules in these hypotheses.
In this case, Article 3, 3 ° of the new Code of Civil Procedure is applicable. This provision provides that the justice of the peace is competent to know "all disputes between landlords and lessees relating to the existence and execution of leases of buildings, as well as claims for compensation of occupation and expulsion from places occupied without right, whether or not following a convention. "
In these cases, the decision of the judge granting the termination of the lease is not enforceable for the forced eviction of the tenant. In the absence of a specific provision, the tenant whose lease has been terminated for any reason other than personal need is considered at the expiration of the cancellation period as an occupant without right or title, and the landlord must ask the judge, next to the termination of the lease, expressly the authorization of the judge to carry out the forced eviction. Usually, the two applications are presented together, but nothing would prevent the lessor to seize the judge separately for the termination and forced eviction.
3. The course of the forced eviction
Once he is in possession of the judicial authorization bearing the enforceable title, the lessor must instruct a bailiff to proceed with the eviction.
Before being able to proceed with the eviction of the tenant or the occupant without right or title, the judicial officer will have to serve the decision of eviction to the latter. We share the view of some authors that according to general principles of law, no enforcement action can be taken before the title on which the enforcement takes place has been notified to the party against which which execution is continued 1.
In case of refusal or absence of the tenant or if the rented accommodation is locked and it is necessary to have the lock broken by a locksmith to be able to enter, the bailiff will have to resort to the public force.
Note that eviction is possible even during the winter months or in bad weather, while no law provides for prohibitions in this regard in Luxembourg.
4. The stay of eviction
In certain cases, a tenant or occupant without right or title, sentenced to the eviction, may ask the judge to stay the execution of the forced eviction. The issue of suspension alone deserves an article, and we will do so in a future edition. At this stage, however, we wish to point out that it exists.
B. Special measures for the safeguarding of personal property of persons sentenced to disappear
The Residential Tenancies Act provides for certain provisions relating to the safeguarding of personal property of persons evicted from their homes.
1. Removal of furniture
Thus, in the case of forced eviction of a person sentenced to leave the places it occupies, movable property in those places are transported to the place designated by that person. The costs are the responsibility of the expelled person who must make the advance.
If the expelled person does not designate any place of deposit, or refuses or is not able to advance the cost of transport, the bailiff responsible for executing the judgment of eviction may request the municipality of place of expulsion - therefore the municipality where is the housing of which is expelled the person sentenced to evade - to be able to transport the movable property in a suitable local made available by the commune. The costs are borne by the person expelled, but in this case they are advanced by the municipality.
Whether the deposit is done in a place designated or not by the evicted person, the bailiff must in any case draw up a record which contains the inventory of goods transported and a summary description of their condition. He gives a copy of the minutes to the person expelled and another to the municipal administration concerned.
2. Deposit in the municipality
If the deposit is made at the request of the bailiff, that is to say in the case where the evicted person has not designated itself where furniture should be transported, the municipality the place of expulsion must take charge of the storage of the personal property of the evicted persons in a suitable place.
The municipality has the right to destroy perishable, unhealthy or dangerous goods and to refuse to store goods whose conservation would cause problems or abnormal costs.
The municipality may also subject the deposit of furniture to the payment of a fee to be fixed by it.
Unless otherwise agreed between the municipality and the evicted person - convention which must then be made in writing - the goods so stored must be removed within 3 months from the date of deposit, against payment of transport costs advanced by the common property and reduced deposit fees. It is, however, open to the municipality to waive the payment of such fees and charges to the evicted person.
After the expiry of the period of 3 months, the municipality sends, by registered letter, to the evicted person a summons to withdraw his property. If thereafter a new period of 3 months has elapsed without neither the person expelled nor the striking party have made themselves known to the municipal administration, the municipality may address, by registered letter, to the person expelled and to the seizing party a final summons to withdraw the property within 15 days, with the indication that, failing to comply with it, it is irrefutably presumed that both the evicted person and the striking party have given up claiming the delivery of stored goods. The municipality is then authorized to proceed with the sale of goods in the depository, otherwise to dispose otherwise.
The municipality deducts on the proceeds of the sale the transport costs and the filing fees which it has advanced or which it is redus ed. The balance is paid to the consignment fund. The owner of the effects and movables or his successors may obtain payment for a period of ten years. After this period, this amount is acquired by the municipality.
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By Lex Thielen, Lawyer at the Court and author of the books "The professions of real estate in Luxembourg law", Editions Larcier, 2010, "The lease contract", Editions Promoculture / Larcier 2013, "All about real estate" , Editions Promoculture / Larcier (1st edition 2015, 2nd edition November 2016), "Immobilienrecht in Luxemburg, einfach erklärt" (Editions Promoculture / Larcier 2016) and "Construction law in Luxembourg" (Editions Promoculture / Larcier February 2018). This article has already been published in issue 81 - september 2012 of habiter.lu, and updated.
1 - Marc Thewes, The New Law of the Lease, ULC 2007, No. 235, citing a judgment of the Court of Cassation of June 14, 1956, Pasicrisie luxembourgeoise, volume 16, p. 473
Posted on November 6, 2018.