On 10 April 2024, the Grand Chamber of the Supreme Court of the Czech Republic issued a resolution File No. 31 Cdo 225/2024-543, in which it dealt with the issue of a notarial deed with permission for direct enforceability as an enforcement title to vacate a property (hereinafter referred to as the “Resolution”). The Grand Chamber of the Supreme Court of the Czech Republic departed from its previous decision and confirmed that a notarial deed with permission for direct enforceability is an eviction title to vacate a property.
In this article, we will discuss the current situation, the key points of the Resolution’s reasoning and its impact on practice and finally compare the current conclusions with the newly proposed institution of an eviction order, which is currently undergoing the legislative process.
The current state of affairs
The Notarial Code contains the regulation of notarial records with permission for direct execution in three provisions, with the key provision for the case cited being Section 71b of Act No. 358/1992 Coll.[1] Consent to direct enforceability means that in the event of a breach of the agreement contained in the notarial deed, the injured party may directly propose the initiation of enforcement of the decision to the bailiff, as he holds the enforcement title (replacing the final court judgment).
Until now, agreements to vacate the property have been a common part of lease contracts drawn up in the form of a notarial deed, or notarial deeds with direct enforceability only in respect of the right to vacate the property, even in cases where someone has occupied the property on the basis of another legal basis or on the basis of an oral agreement (typically a lease).
However, in 2020, the Supreme Court introduced considerable uncertainty into the established situation, as it issued a resolution dated 26 May 2020, File No. 26 Cdo 2085/2019 (“Previous Resolution”), in which it stated that a notarial deed to enforce an obligation that does not arise from a contractual relationship is not a notarial deed within the meaning of Section 71b of the Notarial Code and is therefore not an enforcement title. At the same time, the Supreme Court also stated the following in its previous order: “If the obligation to vacate the real estate is based on the protection of the right of ownership and not on a legal relationship of obligation (which has already ceased to exist or never existed), it cannot be the subject of an agreement to be notarized pursuant to Section 71b of the Notarial Code. A notarial deed pursuant to Article 71b of the Notarial Code cannot therefore be allowed to become enforceable if it is intended to provide protection of the right of ownership.”
Thus, not only was the agreement to vacate the property prohibited from being negotiated by way of a notarial deed with leave to proceed directly to enforcement as a result of the previous order, but also, in view of the formulation that the obligation relationship had already ceased (which the Supreme Court has stated), there was great uncertainty on the issue, whether the entire lease agreement with an eviction clause can also be negotiated in the form of this notarial deed, since the lease agreement terminates (among other things) by termination or expiry of the term, which, according to an extensive interpretation, will result in the termination of the contractual relationship and thus also of the enforcement title itself in the form of the notarial deed.
Key points in the reasoning of the Grand Chamber Resolution
This period of four years of uncertainty was only ended by the aforementioned Resolution issued by the Grand Chamber of the Supreme Court (which is also about to be published in the so-called “Green Collection”). The Grand Chamber decided the case after a referral from the 26 Cdo Chamber, which had issued the previous Resolution, precisely with reference to the inconsistency of decision-making practice.
In the Resolution, the Supreme Court not only admitted the admissibility of the negotiation of a lease agreement with a clause on the eviction of the property after the termination of the lease in the form of a notarial deed with permission for direct enforceability but also admitted that it is possible to negotiate a separate eviction agreement with direct enforceability as a separate notarial deed. However, it must always be borne in mind that the use of the property must be based on a contractual relationship (which is required directly by Article 71b of the Notarial Code) – it does not have to be a lease, it can be a tenancy, a precarium or a loan. In particular, the Supreme Court has stated: “The general provisions on the creation, modification and termination of rights and obligations in this part of the Civil Code also apply mutatis mutandis to the creation, modification and termination of other private rights and obligations, pursuant to Section 11 of the Civil Code. Although the appropriate application of Section 11 of the Civil Code does not in itself make other legal relationships a liability, it is of course not excluded that an absolute legal relationship may also have elements of a relative legal relationship. Although a claim for the eviction of immovable property (flat) is also an expression of the protection of a property right – an action for the return of an object, which includes the eviction of immovable property, is regulated in the Civil Code in the section on absolute property rights and is classified as a so-called proprietary action (Section 1040 of the Civil Code) – this claim also arises from the contractual relationship between the parties. If the contractual relationship, the subject of which was the transfer and use of the property (apartment), has ended, the person who used the property (apartment) is obliged to vacate it and hand it over to the person who gave it to him for use.”
It follows from the foregoing that the return of the property is an obligation of the tenant (and of a person in a similar position) and can thus be considered a non-monetary claim arising from a contractual relationship (even if already extinguished) within the meaning of Section 71b of the Notarial Code, which may be the subject of a notarial deed with a certificate of enforceability.
A separate agreement on the eviction of immovable property in the form of a notarial deed with direct enforceability may then be drawn up even if the contractual relationship itself (lease, tenancy, etc.) was concluded in a form other than a notarial deed.
Impact on practice
The resolution will certainly have a positive impact on legal practice, as at least the (uncertainty) as to whether such a notarial deed can be drawn up and subsequently used as an enforcement title for the eviction of the property is removed.
The primary advantage of such a notarial deed is a substantial acceleration of the process of protection of the landlord’s rights. If the tenant continues to use the real estate after the lease has ended, he or she is acting illegally, but the landlord’s possibilities of defense are very limited. The only possible way to do so is to evict the tenant by means of enforcement – primarily by means of a bailiff, but this requires an appropriate enforcement title, which is either a notarial deed with a permit for direct enforcement or a final court decision. While it is not necessary to wait for a notarial deed with permission for direct execution and it is drawn up basically on the spot when visiting a notary, the landlord often has to wait a very long time for an enforceable court decision to evict the property, as the average length of court proceedings for eviction of a property in Prague is 13 to 15 months.
Requirements of a notarial deed
From the point of view of the exercise of rights, it is essential to distinguish the moment to which the contracting parties have linked the need to evict the property. If the tenant was obliged to vacate the property within, for example, 15 days after the end of the lease, the enforcement title in the form of a notarial deed would be unaffected by whether the lease expires at the end of this expected period or ends prematurely by termination. However, a problematic situation would be the agreement of specific dates for the handing over of the property, e.g. “the lease is agreed for a fixed term until 30 June 2025, the tenant undertakes to vacate the property and hand it back to the landlord within 15 days (i.e. by 14 July 2025)”, in which case the enforcement title in question would be inapplicable for the early termination of the lease.
If the lease relationship no longer exists, but the landlord and tenant wish to subsequently confirm the tenant’s obligation to vacate the premises by way of a notarial deed with direct enforceability, then the Resolution confirmed that the tenant’s obligation to surrender the property back to the landlord still exists, but, at the same time, in order to negotiate an effective and certain notarial deed, a new deadline for vacating the property must be negotiated (even though the tenant was already obliged to do so under the original agreement) otherwise the notarial deed could not serve as a writ of execution. The law does not provide for a specific time limit for vacating the property, so the limit of the agreed time limit remains only the general correctives of legal actions. In business relations, it may be advisable to consider the nature of the property and the activity in question when negotiating the time limit. In relations with consumers, it is advisable to bear in mind Article 160 (1) of Act No 99/1963 Coll., the Code of Civil Procedure, as amended (“CCP”), which sets a minimum time limit of 15 days for vacating the property. Although this is a rule of procedural law, it cannot be ruled out that a shorter time limit could be successfully challenged as contrary to good morals in the event of a dispute.
A notarial deed serving as an enforcement title to vacate a property must therefore contain a time limit for performance (i.e. by when the property is to be vacated). Otherwise, the obligatory condition for drawing up such a notarial deed would not be fulfilled, and it would be unenforceable.
Difference between a notarial deed with direct enforceability and an eviction order
A potential novelty in the area of the right to eviction is the proposed amendment to the Code of Civil Procedure introducing a so-called eviction order, i.e. a kind of an analogue of an electronic payment order for the eviction of property, which is issued by the court in an abbreviated order procedure.
In contrast to a notarial deed with authorization for direct execution, an eviction order does not require any cooperation (or even consent) from the tenant. An order to vacate promises considerable speed and promptness in obtaining a final enforcement title to vacate the property. However, if the tenant is even remotely vigilant, it will be sufficient for him or her to oppose the eviction order (even without giving reasons). In such a case, the eviction order will be set aside, and the matter will be transferred to a traditional contested eviction proceeding.
The eviction order is therefore, if the amendment to the Code of Civil Procedure is adopted as proposed, a welcome acceleration, even if only in cases where the tenant does not intend to defend himself legally. Even so, it is a step in the right direction and the institution will certainly be widely used. However, compared to a direct enforceable notarial deed, an eviction order does not provide the landlord with an overwhelming degree of certainty as to the potential speeding up of a dispute with the tenant, and direct enforceable notarial deeds are likely to remain the obvious choice for sufficiently securing the landlord’s rights.
The aforementioned amendment is still going through the legislative process with a planned effective date of 1 July 2025.
Conclusion
The notarial deed with permission for direct enforceability represents a significant acceleration of the process of forced eviction of a property. The resolution represents a welcome departure from previous decisional practice by making it certain that a landlord and tenant can validly and enforceably enter into a lease with a direct enforceability clause and/or an agreement to vacate the property in the form of a notarial deed only.
We are at your disposal if you have any questions regarding property eviction, leases or civil law. Do not hesitate to contact us.
Mgr. Ondřej Růžička, attorney – ruzicka@plegal.cz
Mgr. Karel Janeba, junior lawyer – janeba@plegal.cz
www.peytonlegal.cz
- 1. 2025
[1] Upon request, a notary shall draw up a notarial record of an agreement by which a party undertakes to fulfil a claim or other claim of the other party arising from a legal relationship of obligation, in which the party consents to the ordering and enforcement of a decision (execution) pursuant to the notarial record and to such notarial record being an enforcement title if the party fails to fulfil its obligation in due and timely manner.