The eviction judgment against the tenant is available. During further preparations you learn from another person that they may themselves own the flat. They are not named as a debtor in the judgment. It is now not sufficient merely to change the previously planned scope of the move. First, the legal advisors must bring the factual situation regarding persons and possession into alignment with the existing judgment.
Precisely delimit the new facts
Compile what has actually become known: who is the person, which concrete information indicates their own possession claim, and from which source does it originate? A name on the doorbell and a mere supposition must remain so labelled. The legal classification of the actual possession relationships must not be replaced by a self-applied designation such as visitor or subtenant.
Attach the judgment and relevant service documents. § 750 ZPO contains requirements concerning the persons named and the service. [Z750] Whether and how the existing judgment covers the specific case must be examined on the basis of these actual documents.
Measure the time of knowledge at the close of the hearing
§ 940a paragraph 2 ZPO provides, under its conditions, for a provisional eviction order against a third party in possession of the leased property. It requires an enforceable eviction judgment against the tenant and knowledge of the third party’s acquisition of possession only after the close of the oral hearing. [Z940A]
Therefore document both the close of the hearing and your actual first knowledge. The date of the judgment is not the comparison point named in this provision. Preserve the original message and earlier indications in full; a later summary must not obscure the earlier state of information.
A separate case with an earlier message
In the hypothetical case a landlord initially only recalls a recent communication. When reviewing the correspondence, however, they find an earlier message that already, before the close of the hearing, pointed to another person using the premises. Its actual content is unclear.
They hand both messages to the legal advisers. These must examine whether the earlier information already conveyed the decisive knowledge and what possession situation in fact existed. The landlord does not simply choose the later date so that the desired procedural path appears to fit at first glance.
Prepare a judicial decision
In the cases of paragraph 2 the court must hear the opponent before issuing the eviction order; paragraph 4 provides this. [Z940A] The provision is therefore not a separate enforcement order against every additionally encountered person.
Clarify with the advisers the appropriate legal procedure, the further prerequisites, necessary documents and effects on the planned process. This article does not make an application and does not confirm any right to delivery. The result is a reasoned decision on the specific third-party possession before the enforcement appointment is based on an unexamined assumption about the person.