Claim for return

Right of Restitution - The right of restitution is the owner’s right to demand that any unauthorized possessor return the property (§ 985 BGB, known as the right of vindication). In the real estate sector, this primarily concerns cases in which a person uses a property or an apartment without being entitled to do so-for example, after the expiration of a lease, in the event of unauthorized occupation, or following a failed purchase.

Prerequisites and Enforcement

The claim for restitution under § 985 BGB requires that the claimant be the owner and the defendant be a possessor without a right to possession. A right to possession exists, for example, through a current lease agreement, a right of usufruct, or a right of residence. As long as such a right exists, the claim for surrender is precluded (Section 986 BGB). In practice, the claim for surrender is enforced through an eviction action before the local or regional court. The eviction is carried out by a bailiff.

Important: The claim for surrender generally becomes time-barred after 30 years (Section 197 BGB)-a significantly longer period than for other claims. This means: Even if a third party uses a property for years without a legal right to do so, the owner can still demand surrender after a long period of time. This long statute of limitations protects the right to property as a fundamental constitutional right (Art. 14 GG).

Return of Possession After the Lease Ends

The most common scenario in the real estate sector is the claim for return of possession after the termination of the lease (§ 546 BGB). The tenant is obligated to return the apartment vacant and in the condition specified in the contract. If they fail to fulfill this obligation, the landlord may demand compensation for use in the amount of the local market rent (Section 546a of the German Civil Code (BGB)). At the same time, the landlord must file an eviction suit-self-help (unauthorized changing of locks, clearing out the apartment) is prohibited and punishable by law.

Landlords should note that subtenants who remain in the apartment after the main lease expires must also move out. The claim for surrender applies to anyone who actually holds possession of the apartment-including subtenants and roommates who cannot prove their own right of possession.

Surrender of Possession Following a Change of Ownership

When purchasing a rented property, the principle “purchase does not terminate the lease” (§ 566 BGB) applies: The new owner automatically assumes the existing lease. A claim for surrender of possession therefore arises only once the lease has been terminated by notice or a termination agreement. Especially in cases of personal use, termination and the subsequent surrender of the property are subject to strict conditions-the new owner’s mere desire is not sufficient.

Practical Tip for Owners in Nuremberg

In the Nuremberg metropolitan area, we regularly encounter cases where tenants refuse to move out after receiving notice of termination, and the eviction process drags on for months. Our advice: Document the condition of the apartment at the start of the lease with a move-in inspection report and photos. Always send notices of termination by certified mail. If the tenant does not move out, file an eviction lawsuit immediately-every month of delay costs you rental income.

In urgent cases, a temporary restraining order for eviction can be requested-for example, if the tenant is vandalizing or significantly neglecting the property. The Nuremberg Local Court has jurisdiction over regular eviction proceedings. We recommend consulting a lawyer specializing in tenancy law early on to determine the strategy for the eviction proceedings.

Frequently Asked Questions

How long does an eviction lawsuit take in Nuremberg?

Based on experience, it takes 3 to 9 months from the filing of the lawsuit to an enforceable judgment at the Nuremberg Local Court-depending on the court’s workload and whether the tenant applies for eviction protection under § 721 ZPO. The subsequent forced eviction by the bailiff takes another 4-8 weeks.

Can the tenant refuse to vacate if they claim a defect?

No. A defect in the rented property entitles the tenant to a rent reduction, but not to refuse to vacate at the end of the lease. The tenant has no right of retention over the apartment due to outstanding claims for defects. These must be asserted separately.

Does the claim for surrender also apply to undeveloped land?

Yes. The claim for surrender under § 985 BGB applies to all property-including undeveloped land. If a piece of land is used without authorization (e.g., as a parking space or storage area), the owner may demand its surrender and additionally claim damages or compensation for use.

What happens if the tenant does not return the keys?

The obligation to surrender the property also includes all keys to the apartment and common areas. If the tenant does not return the keys, the owner can claim the costs of replacing the locks as damages. In this case, we recommend immediately replacing all locks and sending a documented demand for payment to the former tenant.

Can the claim for return also be asserted against a subtenant?

Yes. The claim for return under § 985 BGB applies to anyone who is actually in possession of the apartment and cannot prove their own right to possession vis-à-vis the owner. A sublease agreement establishes a right of possession solely vis-à-vis the primary tenant-not vis-à-vis the owner. If the primary tenancy ends, the subtenant also loses their right of possession vis-à-vis the landlord. The landlord can therefore file an eviction suit against both the primary tenant and the subtenant directly, or against both jointly. In practice, we recommend suing both parties simultaneously to avoid delays.

Claim for Surrender of Possession and Preliminary Injunction

In particularly urgent cases, owners may apply to the Nuremberg Local Court for a preliminary injunction for immediate eviction. A prerequisite is a so-called ground for the injunction-that is, a special urgency that goes beyond the normal course of time. Recognized grounds include, for example, significant damage to the property caused by the occupant, a planned sublease, or an impending sale. Without a special urgency, the only option is to file a regular eviction lawsuit. Owners in Nuremberg seeking legal assistance can find specialized attorneys for tenancy and condominium law through the German Bar Association (DAV) in Nuremberg or via the attorney search function of the Nuremberg Bar Association.

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