Reader question: How do I determine after the end of a tenancy and the opening of the landlord's insolvency whether a separately held deposit must be excluded from the insolvency estate (auszusondern) or whether a claim must be lodged?
You have already moved out. The deposit was paid, its accounting or payment is still pending. Now you have received notice of opened insolvency proceedings against your former landlord. A simple reminder to the old payment contact does not address the new situation: first it must be clarified which money is actually held separately and which claim you are asserting.
This article deals with the narrower case of a residential tenancy that ended before the opening of the proceedings. Ongoing tenancies, securities paid only later, guarantees or a sale of the apartment require a separate assessment.
Verify the person affected and the procedural status
Compare the opening order with the actual contracting party. A property management company and the renting owner company can be different persons. File together the file number, opening date, named insolvency administrator and the filing deadline stated in the order. A mere crisis report or an application is not the same procedural status as the opening.
Our editorial recommendation: use contact details verified in a comprehensible way from the procedural documents. A surprising message with a new bank account does not become trustworthy simply because it contains the word insolvency. Ongoing other payments are not to be redirected here.
Distinguish between the duty to invest separately and the actual holdings
§ 551 BGB generally requires separation of the cash deposit from the landlord's assets. [BGB551] Whether this duty was actually complied with is, however, a question of fact. In addition to your payment receipt, look specifically for any investment confirmations and the associated account documentation. Ask the competent insolvency administrator specifically for the proven deposit balance for your tenancy.
An account statement of your transfer at the time initially proves that payment. It does not automatically confirm that the amount was subsequently kept in a suitable separate account. Conversely, a missing separate account statement will not, without inquiry, be a safe assertion that there is no separate holding.
Why the distinction changes the further path
Under § 47 InsO it must be distinguished whether an item does not belong to the insolvency estate by virtue of a corresponding right. That is the basis of the exclusion (Aussonderungsfrage). [InsO47] The BGH decided in IX ZR 132/06: a paid residential tenancy deposit in the landlord's insolvency can only be excluded if it was actually held separately. If this separation did not occur, in that case it remained an insolvency claim. The statutory duty to separate alone did not retroactively create the right of exclusion. [BGHIX13206]
An exclusion is also not an automatic promise that the full amount must be paid out tomorrow. Accounting, actually secured counterclaims and the specific balance remain subject to examination. Demand a comprehensible allocation rather than a blanket confirmation “deposit present”.
Quantify the open claim without inventing rank or maturity
Assemble the deposit agreement, payment receipts, end of tenancy, handover, any existing accounting and amounts already received. Specify disputed deductions with their actual status. In the hypothetical case 1800 euros were paid and 300 euros repaid before the opening. 1500 euros are therefore initially the arithmetically open remainder; its entitlement and the appropriate legal route are not thereby decided.
§ 38 InsO describes insolvency creditors by reference to a pecuniary claim established at the time of the opening. § 87 InsO refers to the insolvency proceedings for the pursuit of such claims. [InsO38,InsO87] If classification is unclear you should present the case to a specialist promptly. A mere assertion of a separate investment does not replace its proof nor the clarification of a possibly necessary filing.
Observe the prescribed filing route
The relevant summons and deadline are set out in the opening order; § 28 InsO provides for filing with the insolvency administrator. [InsO28] § 174 InsO requires in particular the basis and amount of the claim and generally copies of documents. The current provision also permits transmission as an electronic document in accordance with its rules; the specific transmission method offered should be observed. [InsO174] A general message sent somewhere or a telephone call is not automatically a proper filing.
Keep the actual version submitted and the transmission receipt. A filing does not yet confirm acceptance or a particular payment. If a later response on existence, claim examination or objection follows, that exact process will be pursued further. Your usable result is a clarified route to asserting the claim with documented remaining amount and pursued procedural status, not a payout guarantee derived from this article.