Postimees published Kristjan Nõges's opinion piece on getting rid of tenants in breach
Since the moment when the TV show "Pealtnägija" first publically raised the issue of tenants who don't pay rent, this topic has become very relevant. Again and again, articles and opinion pieces appear, in which, in the light of similar circumstances, the same problem is ultimately recognized, and the shortcomings of the legislation are pointed out in the comments. However, the current legislation actually does provide several practical ways to get rid of such tenants.
When acquiring a dwelling encumbered by a lease to use it for your own residence, the first step in acquiring possession of the dwelling is cancelling the lease in question. According to the law, this must be done within three months from the acquisition of the dwelling, and the tenant must also be notified three months in advance.
However, if the tenant is already not-payng rent, it may not be sufficient to submit a notice of termination. Most likely, the tenant will dispute this statement in court or not react to it at all.
Furthermore, eviction on the landlords's own initiative is against the law, which is why going to court is inevitable in such a situation. However, going to court does not necessarily mean that the expected possession of the dwelling will be obtained much later than the three-month deadline specified in the notice of termination. Here, the landlord is protected by two procedural methods, which are often overlooked in practice.
If the tenant's behavior gives reason to believe that the apartment will not be vacated by the deadline specified in the notice of termination, the landlord does not have to wait until this deadline has passed in vain to protect his rights. In such a situation, the landlord can file a lawsuit to vacate the premises in the future, which means that the landlord's claim does not have to be enforceable at the time of filing the lawsuit.
If the court is able to examine and satisfy the landlord's claim within the term specified in the notice of termination, the landlord can immediately start enforcement proceedings, i.e. vacate the premises with the help of a bailiff, upon the expiry of the specified term. If the court does not have time to review the lawsuit within the specified term, the landlord still gains considerable procedural time by filing the lawsuit earlier.
If the deadline for vacating the dwelling specified in the notice of termination has passed and the dwelling has not been vacated, the landlord may request the court to vacate the dwelling or part of it within the framework of preliminary legal protection, i.e. securing a lawsuit. In exceptional circumstances, it is possible to apply for the guarantee of the claim in this way even before filing the claim for vacating the dwelling. Among other things, the court resolves the application for guaranteeing the claim no later than on the working day following the day of its submission, unless it wants to hear the tenant first.
All in all, it is a quick and effective remedy, which, when implemented, essentially leads to the temporary satisfaction of the lawsuit due to its preventive effect. In connection with the above, however, it must be taken into account that if the claim is later rejected, the landlord risks the tenant's claim for damages and restoration of the former situation.
At the same time, the court may require the lessor to provide a guarantee to secure the claim, in order to ensure that the tenant is compensated for the aforementioned losses in the event that the claim is not satisfied.
In relation to the tenant's rights, this remedy is understandably very extreme, which is why it cannot be assumed that the request for its implementation will be satisfied lightly. However, there are a number of examples in court practice where the movable or immovable property in question has, for a good reason, been ruled out in favor of the owner by means of securing a lawsuit from the presumed illegal possession of its user.
Therefore, in a situation where the continued possession of the tenant is clearly unjustified, indicates an abuse of rights and places the landlord in a very difficult situation, the application of the relevant remedy should be requested in any case.
The opinion piece was published in the opinion section of Tarbija24 and Postimees on April 11, 2013.
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