Classical forced administration vs. indirectly forced administration

 

   

Indirectly forced administration

 

Classical forced administration

1

 

 

Operations are negotiable between insolvency administrator and creditor. Both parties are free from ZwVwV (German law).

 

    

The administrator and his operations are subject to the legislation of the ZwVwV (German law).

 

2

 

 

The (insolvency) administrator has to take possession of real estate and subsequently, has to collect the income from rent and lease as well as ensure sufficient insurance.

 

 

The (forced) administrator has to take possession of real estate and subsequently, must primarily collect income from rent and lease as well as ensure sufficient insurance.

 

3

 

 

The (forced) administrator has to take possession of real estate and subsequently, must primarily collect income from rent and lease as well as ensure sufficient insurance.

 

 

Repairs and maintenance are obligatory. Expenses, which are not part of ordinary maintenance shall be approved by the court.
(§ 10 ZwVwV)

 

4

 

 

The insolvency administrator can claim compensation for use from the debtor. (Higher Regional Court Nuremberg, verdict of 24 June 2005 - 5 U 215/05)

 

 

The debtor is permitted to continue to use the property free of charge (§ 149 ZVG).

 

5

 

 

Deposits, which are not separated onto deposit savings accounts by the debtor, are a claim in insolvency proceedings and do not have to be paid out by the administrator.

 

 

The forced administrator is obligated to transfer credit from utility cost invoices from the period of time before the day of distraint to tenants. (§148 ZVG, § 152 ZVG; verdict Federal Court of Justice VIII ZR 333/02)

The transfer is borne by ZwV mass/ creditors.

 

6

 

 

Kautionen, die durch den Schuldner nicht auf Kautionssparkonten separiert wurden stellen eine Insolvenzforderung dar und müssen durch den Verwalter nicht ausgezahlt werden.

 

 

The administrator is obligated to pay back the deposit, irrespective of whether the debtor has not invested or spent it.

Federal Court of Justice of 16 July 2003 -  VIII ZR 11/03, NZM 2003, 849; Federal Court of Justice of 9 March 2005 - VIII ZR 330/03, NZM 2005, 596).

Furthermore, the administrator is obligated to save and (re-) invest deposits spent by the debtor from advance payments of the creditor during current leases, pursuant to specifications of § 551 Paragraph 3 BGB (Federal Court of Justice of 11 March 2009 - VIII ZR 184/08, NJW 2009, 1673).

 

7

 

 

For new leases, rent deposits paid by tenants, must be invested as seperate rent deposit savings accounts (pass books), pursuant to § 551 BGB and are to be held in trust. This also applies for rent diposits which were taken over.

 

 

For new leases, rent deposits paid by tenants, must be invested as seperate rent deposit savings accounts (pass books), pursuant to

§ 551 BGB and are to be held in trust. This also applies for rent deposits which were taken over.