Around 30 to 40 per cent of German auction properties are still occupied at the moment of the award. As the buyer you then face one of the most common problems in these proceedings: how do you get into the property when the previous owner or the tenant will not leave?
This article explains the legal position, how an eviction runs and what you should realistically expect.
The report usually says how the property is being used. There are three typical cases.
The previous owner lost their ownership with the award. From that moment they are legally obliged to hand the property over, but often refuse to leave for personal or financial reasons.
Here you can apply directly to the court for possession (§ 93 ZVG). The procedure is simplified in the foreclosure act: you do not need a separate eviction order from a long civil action.
Where there is a proper tenancy agreement, the principle that a sale does not break a lease applies at auction too. The buyer becomes the new landlord under the existing tenancy (§ 566 BGB, § 57 ZVG). The tenant keeps every right in their agreement.
Notice is possible only on the ordinary grounds of tenancy law: own use (§ 573 BGB), a serious breach of the agreement, or commercial realisation (§ 57a ZVG together with § 573 BGB).
§ 57a ZVG gives the buyer a right to end the tenancy at the earliest possible date, where they need the property for realisation or want to live in it themselves. That notice is still tied to the ordinary requirements of the civil code and needs a recognised ground.
The court officer at the local court that ran the auction can, on the buyer's application, order the property to be handed over. That spares the buyer a long court action.
Requirement: the previous owner must have been the debtor in the proceedings. In standard cases that is almost always so.
Advantage: the § 93 ZVG route is considerably faster than an ordinary eviction claim. In practice it usually takes 4 to 12 weeks until the bailiff enforces it.
Costs: the bailiff's fees, which depend on the work involved, and possibly storage costs for belongings the debtor leaves behind.
Against a tenant with a proper agreement the § 93 ZVG route is generally not available. Ordinary tenancy rules apply.
If you want to live in the property yourself you can give notice for own use after buying (§ 573 BGB). The requirements:
Important: the need must be real. Pretended own use is a criminal offence and leads to a claim for damages.
§ 57a ZVG gives the buyer the special right of termination. It requires that continued use as a let property substantially impairs a reasonable commercial realisation. That is a high bar and is rarely met in practice.
If the tenant does not leave despite valid notice, the buyer must bring an eviction claim at the local court. Where it is contested the case runs 3 to 9 months, longer at busy courts. Once judgment is given, the bailiff enforces it.
Total time for a contested tenancy: budget realistically for 6 to 18 months.
| Item | Typical amount |
|---|---|
| Legal fees, notice and claim | 1,000 to 4,000 euros |
| Court fees | depends on the value in dispute |
| Bailiff | 200 to 2,000 euros |
| Storage of belongings left behind | 100 to 1,000 euros |
| Rent lost during the proceedings | monthly rent × months |
| Total | variable, 3,000 to 15,000 euros is possible |
These costs belong in your bid calculation. If you buy an occupied property, allow an eviction buffer of 5,000 to 15,000 euros depending on the situation.
The report states how the property was used when the surveyor visited. Watch for the following wording:
| Wording | What it means |
|---|---|
| "Empty at the time of the visit" | Probably still empty at the hearing |
| "Occupied by the owner" | Eviction risk, but the faster § 93 ZVG route |
| "Let, tenant: [name], tenancy from: [date]" | Ordinary tenancy law, harder to end |
| "Access refused" | Large unknown, be careful |
| "Partly let, partly empty" | Mixed, check each unit |
Professional investors work the eviction risk through systematically:
Rule of thumb: for an occupied property with an uncertain situation, take 3 to 8 per cent off the bid as an eviction buffer.
How quickly must the previous owner leave? There is no statutory deadline. They must leave without undue delay, which in law means without culpable hesitation. In practice little happens without pressure. The buyer has to act and file the § 93 ZVG application.
Can I put the owner out immediately after the award? No. The eviction procedure only starts once the award decision is made and an enforceable order issued. That takes some weeks.
What happens to the previous owner's furniture? Belongings left behind must be stored by the bailiff. The buyer, as applicant, pays first but can recover the cost from the debtor.
Do I have to give the tenant fresh notice, even if notice was already running? Generally yes. As the new owner you normally have to give your own notice. Notice already given by the previous owner can in some circumstances continue to have effect, but that depends on the case. Take legal advice.
Can I deduct eviction costs for tax? On an investment property, eviction costs are deductible expenses. On a home you live in, they are generally not.
For what to know about bidding in the room, see bidding successfully at a foreclosure auction. A full picture of the risks is in German foreclosure auctions: risks and opportunities.
This article is general information. It does not replace advice from a qualified lawyer.
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