Eviction by separation Even though both tenants are
August 2, 2009 | 35,00 EUR | answered by Andreas Scholz
Hello, I live with my ex-girlfriend, we are both tenants and both on the rental agreement. We have a small daughter and rely on Hartz 4 (German unemployment benefit). Now my question is, she says I have to leave the apartment but I don't know where to go. Today she called the police and told them I was threatening her and she was afraid of me, just because we had an argument in the past. The police told me I have to leave the apartment, so now I can't even go back to my own place because the police said so. Do I have to sleep on the street now? I want to go back to my apartment, can I do that or will she call the police again?
Dear questioner,
Basically, your girlfriend does not have the legal right to remove you from the apartment, as you both are tenants of this apartment.
However, a different situation applies under the Violence Protection Act. In that case, you could indeed be prohibited from entering the apartment. This can only happen through a court order. According to your information, such an order does not exist, and it would only be possible if there were actual physical assaults against your ex-girlfriend. Your girlfriend would have to provide credible evidence of this. A simple argument is not sufficient.
I assume that the police issued you a temporary restraining order. This is permissible as a police measure to bridge the time until a judicial decision under the Violence Protection Act is made. This restraining order should have had a time limit, usually not exceeding one week. If you were issued a temporary restraining order, you are not allowed to enter the apartment. If you do so, your ex-girlfriend can legally have you removed from the apartment again with the help of the police. During the time you are barred from the apartment, you must find another place to stay.
If you have indeed been issued a temporary restraining order, I regret to inform you that there is no better news.
I hope this information has been helpful to you. If you have any questions, please feel free to ask.
Best regards,
Andreas Scholz, Attorney
Dear questioner,
I would like to add some information to my previous answer:
If there have been no physical altercations, you have the option to file an application for interim legal protection against the restraining order according to § 80 para. 5 of the Administrative Court Procedure Act. This application should be submitted to the competent administrative court.
If you consider filing such an application, it is important to note the following regarding the actions of the police:
In cases of mutual physical violence - if such incidents have occurred - it is considered proportionate to remove the partner from the apartment who "bears the greater share" of the dispute or, in cases of equal blame, the partner who can most easily endure a short-term separation from the shared apartment. The on-site police officer decides on this based on their discretionary judgment. The decision is based solely on the circumstances present at the time the restraining order is issued, not on any knowledge gained later.
I hope this additional information has been helpful to you once again.
Best regards,
Andreas Scholz, Attorney
