Temporary Restraining Order

Preliminary Injunction - A preliminary injunction (Sections 935, 940 of the German Code of Civil Procedure (ZPO)) is an urgent court order that grants provisional legal protection when the matter cannot be delayed. In real estate law, it is used to avert imminent harm before regular court proceedings are concluded - for example, to prevent unauthorized construction work, to halt an unlawful demolition, to secure possession in the event of unlawful eviction, or to protect against environmental nuisances.

Requirements

Two requirements must be met for a preliminary injunction to be issued:

1. Right to an injunction: The applicant must establish a credible substantive claim-e.g., a claim for injunctive relief due to disturbance of possession, a neighborly defense claim, or a contractual claim for performance
2. Grounds for the injunction (urgency): There must be a risk that, without immediate intervention, the claim will be thwarted or significantly impeded-e.g., the demolition of a building is imminent, or a neighbor is erecting a boundary fence without a permit.

Substantiation is provided through an affidavit and the submission of documents-full proof (as in the main proceedings) is not required.

Typical Applications in Real Estate Law

• Construction Halt: Prohibition of unauthorized or boundary-crossing construction work by a neighbor
• Protection of Possession: Protection against unauthorized eviction, lock replacement, or self-help by the landlord
• Protection against nuisance: Cease and desist from extreme construction noise, vibrations, or dust pollution exceeding permissible limits
• Prohibition on disposition: Prevention of the sale or encumbrance of a property in cases of disputed ownership (preliminary notice)
• Tenancy law: Prohibition of unlawful modernization measures, restoration of possession following unlawful termination

Procedure and Costs

The court may issue the preliminary injunction either by order (without an oral hearing, in cases of particular urgency) or by judgment (following an oral hearing). In cases of particular urgency-such as when facts are being established over the weekend-an on-call judge may also be summoned outside of regular business hours. The costs for the application and proceedings depend on the amount in dispute: For an amount in dispute of €20,000, court costs amount to approximately €500 plus attorney’s fees. If the application is successful, the costs may be imposed on the opposing party.

Practical Tip for Property Owners in Nuremberg and Franconia

In Nuremberg, the Nuremberg-Fürth Regional Court has jurisdiction over preliminary injunctions in real estate law (for amounts in dispute over €5,000; below that, the Nuremberg Local Court). In cases of extreme urgency-such as when a neighbor begins demolishing a boundary wall over the weekend or unlicensed construction work starts on a boundary structure-the preliminary injunction can also be issued via a ruling without an oral hearing on the same day. We recommend consulting a lawyer immediately if irreversible damage to your property is imminent-every day of delay can weaken the grounds for the injunction. Document the situation with photos, videos, and a detailed record of events, as this significantly facilitates establishing credibility.

Frequently Asked Questions

How quickly can a preliminary injunction be issued?

In cases of extreme urgency, the court can issue a preliminary injunction on the same day by order-without a prior hearing of the opposing party. Typically, it takes 1-3 weeks until the oral hearing. The application can also be filed outside of business hours with the on-call judge-this is possible in genuine emergencies (ongoing demolition work, imminent irreversible damage). The more urgent and convincing the grounds for the injunction are presented, the faster the court will act.

What happens if the opposing party fails to comply with the preliminary injunction?

In the event of a violation of a preliminary injunction, the opposing party faces a fine of up to €250,000 or imprisonment for up to 6 months (Section 890 of the German Code of Civil Procedure (ZPO)). The applicant must report the violation to the court and request that the penalty be imposed. In practice, the mere threat of a fine acts as a deterrent-most opposing parties comply with the court order as soon as they seriously anticipate consequences. Document every violation carefully, including the date, time, and evidence.

What are the risks for the applicant?

If the preliminary injunction is granted but is found to be unjustified in the main proceedings, the applicant is liable to the opposing party for damages (Section 945 of the German Code of Civil Procedure (ZPO))-regardless of fault. This is a significant risk: Anyone who obtains a preliminary injunction and thereby causes financial harm to the opposing party is liable for this damage, even if they acted in good faith. The court may also require the posting of a security deposit. Furthermore, after the injunction is issued, the applicant must initiate the main proceedings-otherwise, the injunction will be lifted at the opposing party’s request.

Distinction from Seizure

In addition to the preliminary injunction, the ZPO recognizes attachment (§§ 916 ff. ZPO) as a second urgent remedy. Both are provisional protective measures, but with different focuses: Attachment primarily secures monetary claims-it prevents the debtor from transferring assets before a monetary debt can be enforced. The preliminary injunction, on the other hand, secures claims for injunctive relief, tolerance, or specific performance and is therefore better suited for typical real estate law scenarios such as construction halts, protection of possession, or defense against nuisances. In practice, the preliminary injunction is almost always the appropriate instrument in real estate disputes; attachment is considered at most in cases involving purchase price or damages claims.

Objection and Revocation

If a preliminary injunction is issued by order (without an oral hearing), the opposing party may file an objection within a set period. The court then schedules an oral hearing in which both sides are heard. Depending on the outcome, the injunction is confirmed, modified, or revoked. In addition, the respondent may file a preliminary statement with the court-a precautionary submission that the court reviews before deciding whether to issue the preliminary injunction. Any property owner or tenant who anticipates that an applicant might obtain a preliminary injunction should submit a preliminary statement to the court in advance to inform the court and prevent an order from being issued without a hearing.

Enforcement of the Preliminary Injunction

A preliminary injunction only takes effect once it has been served and enforced. In the case of an injunction to cease and desist, it must be served on the opposing party; the petitioner has a statutory deadline for this (usually one month after issuance). If the enforcement deadline is missed, the injunction is revoked at the opposing party’s request. For property owners in Nuremberg, this means: Act after the order is issued; do not wait. The attorney should immediately ensure proper service.

Back to the Real Estate Glossary.