The Berlin eviction in accordance with § 885a ZPO.
Initial situation: The problem of classic forced eviction
In the classic forced eviction, the so-called Prussian eviction (§ 885 ZPO), the bailiff is obliged to remove the entire movable inventory from an apartment or property. This is carried out by a forwarding agent commissioned by him — at the creditor’s expense. The items are recorded, packed, transported, stored — and later sold at public auction or items that cannot be sold are then disposed of.
This procedure is not only time-consuming and expensive, but also blocks the use of the property in the meantime. The economic risk lies entirely with the creditor — usually the landlord. Even if the debtor is ultimately liable for the costs, their recovery often remains illusory in practice.
The solution: Berlin eviction according to § 885a ZPO
The so-called “Berlin model” has become established in practice to counter this shortcoming — supported by the landmark ruling of the BGH of November 17, 2005 (case no. I ZB 45/05) and now regulated by law in § 885a ZPO.
The main difference:
The bailiff merely takes possession of the movable property from the debtor — but does not remove it. Instead, possession is transferred directly to the creditor. This radically streamlines the entire procedure.
Attention: No pledge of rights — but transfer of ownership
Frequent errors in practice concern the relationship to the landlord’s lien pursuant to Section 562 BGB. This does not apply in the context of the Berlin eviction.
Instead, the realization of objects left behind is based on the general provisions on the realization of third-party property pursuant to Sections 372–380, 382, 383 and 385 BGB. This means in particular:
- The debtor shall be entitled to the realization proceeds to the extent that they exceed the costs of realization.
- The creditor is not favored by a pledge of rights, but is obliged to ensure proper safekeeping and realization in accordance with the law.
The public auction — legally compliant and efficient
If the debtor does not comply with his obligation to surrender the property, the creditor may have the surrendered items sold at public auction — this is expressly provided for in Section 885a (4) ZPO.
The following applies:
- The auction is conducted by a publicly appointed, sworn auctioneer who is authorized to conduct the auction (§ 1235 BGB).
- The legally required public announcement (Section 1237 BGB) ensures transparency.
- The proceeds are primarily used to cover the realization costs; any surplus is to be paid out to the debtor — provided there is no attachment order in favor of the creditor.
In terms of legal doctrine, this is not collateral enforcement, but a legally permitted sale on the basis of a legal relationship created by transfer of ownership.
The debtor’s right to the best possible economic realization
In practice, it is not uncommon for items left behind after a clearance to be deposited by the landlord in inaccessible or unattractive storage rooms — far removed from any sales-promoting presentation. The result: a significantly reduced attractiveness of the auctioned property, a declining response from bidders and thus regularly a hammer price below the market value.
Such economically inadequate realization proceeds can not only disadvantage the creditor financially, but also entail liability risks: The debtor is generally entitled to an economically appropriate realization of the items left behind. If obvious value-preserving measures are not taken, this can result in claims for damages.
Landlords are therefore well advised to actively counter this risk — for example by making their own minimum bid in consultation with the auctioneer. This not only ensures that the sale proceeds are in line with the market, but also documents that the sale was carried out with due care.
In addition, an inadequate, legally contestable presentation of the auctioned items can also lead to the publicly appointed, sworn auctioneer refusing the commission — especially if it is foreseeable that he could be drawn into costly and time-consuming disputes as a witness or party to the proceedings.
Procedure in practice — clearly regulated
The bailiff:
- deprives the debtor of possession and transfers it to the creditor;
- documents the condition of the items (e.g. with photos or an inventory list);
- informs the debtor of the possibility of recovering the items against payment of the storage costs;
- sets a reasonable deadline;
- draws up a formal record of the transfer of ownership.
- There is no threat of auction in accordance with Section 1234 BGB.
Important:
The bailiff does not store — he hands over. The creditor alone is responsible for the safekeeping and subsequent order for realization.
Legal classification and advantages for all sides
The Berlin eviction is a prime example of a practice-oriented legal reform:
- Cost reduction: Significantly lower financial burden for creditors.
- Time efficiency: faster release of the property and re-letting possible.
- Transparency and fairness: The debtor is not expropriated, but is given the option of repossession or the proceeds of realization.
- Legal conformity: The public auction with acquisition in good faith in accordance with Section 935 (2) of the German Civil Code (BGB) ensures clarity of ownership — without reversal.
Conclusion: Berlin evacuation — smart, clear, consistent
Berlin eviction is an efficient and legally compliant procedure that takes the interests of creditors and debtors equally into account. It saves costs, speeds up processes and opens up new scope in receivables management — especially in the case of tense tenancies or commercial properties.
The public auction pursuant to Section 885a ZPO is the decisive instrument for the legally compliant, transparent and economically sensible realization of abandoned items.
We carry out the legally compliant implementation of the Berlin eviction.
Our fee is based on the buyer’s premium — the only expenses incurred by the client are those for the legally required public announcement as well as the inventory and photos of the items to be auctioned.
The future is not created by waiting — but by taking decisive action.
Rely on an efficient, transparent and economically optimized solution in eviction law.
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