By its Resolution of the Grand Panel of the Supreme Court of the Czech Republic dated 10 April 2024, Ref. No. 31 Cdo 225/2024-543 (the “Resolution”), the Supreme Court departed from its earlier strict case law[1] and restored legal certainty and, at least among part of the professional public, the desired state of affairs regarding the eviction of property on the basis of a notarial deed with consent to direct enforceability as an enforcement title.
This article does not aim to analyse the reasoning of the Supreme Court in the Resolution.[2] The purpose of this article is to reflect on the possible practical implications of the Resolution for landlords, in particular those who lease multiple properties, and to highlight possible areas of risk arising from the Resolution. The authors seek to initiate professional discussion primarily on the issue of whether a notarial deed with consent to direct enforceability may be used as an enforcement title for the eviction of property even after a certain period of time has elapsed, where, in the meantime (e.g. as a result of automatic renewal), the tenant becomes entitled to use the property.
Time limitation on the use of a notarial deed as an enforcement title for the eviction of property
In the Resolution, the Supreme Court clearly stated that a condition for the enforceability of such a notarial deed is the specification of a period within which the tenant must vacate the property. Section 40(2) of the Enforcement Code[3] generally provides that where an enforcement title does not specify a period for compliance with the obligation, the obligations imposed by the enforcement title are deemed to be required to be fulfilled within 3 days or, in the case of the eviction of an apartment, within 15 days from the date on which the decision becomes final. However, Section 71b of the Notarial Code is lex specialis to this provision and, therefore, Section 71b(2)(e) of the Notarial Code[4] applies with priority, providing that a notarial deed must specify a particular time for performance.
In practice, lease agreements are commonly concluded for a fixed term, most often for 1 calendar year from the date of execution of the lease agreement, particularly in the case of landlords who lease multiple properties or even all residential units in an apartment building. In such a case, a notarial deed with consent to direct enforceability would, in practice, be usable without significant difficulty. If, for example, the lease agreement were concluded for the period from 1 September 2026 to 31 December 2027, it would be sufficient to state in the notarial deed that the tenant undertakes to vacate the property by 31 December 2027. If, at any time from 1 January 2028 onwards, the property had not been vacated and made fit for return to the landlord, the tenant would be in default and it would already be possible to proceed directly with enforcement of the obligation imposed on the tenant by the notarial deed with consent to direct enforceability.
The primary subject of this article, however, is the question of whether a notarial deed (for example, the one referred to above) would also remain usable where the original lease is extended (e.g. by an amendment to the existing lease agreement), while the original notarial deed with consent to direct enforceability remains unchanged. In other words, the authors consider whether enforcement proceedings may be initiated and the property successfully vacated by a judicial enforcement officer in a situation where the landlord holds a notarial deed with consent to direct enforceability requiring the tenant to vacate the property, for example, by 31 December 2027, but in the meantime the landlord and the tenant extend the term of the lease for a further period (i.e. for a period after 1 January 2028), with the lease actually ending only after the expiry of that further period and the tenant then refusing to duly vacate the property.
Continuation of the lease after expiry of the period specified in the notarial deed
The most common method of extending the term of a lease in ordinary residential lease relationships is by means of a brief amendment. For such an amendment to take effect, it is often sufficient simply to agree that the lease is extended until 31 December 2028.
Assuming that the vacating of the premises under an existing lease agreement is secured by a notarial deed with consent to direct enforceability, it would be necessary, in order to ensure the indisputable “usability” of the notarial deed, to execute a further notarial deed for the new (extended) period. In such a case, the tenant’s obligation to vacate the property by a certain date (linked to the end of the lease upon expiry of its term) is agreed in the form of a notarial deed, but the parties subsequently extend the term of the lease without “updating” the notarial deed containing the original date for vacating the property.
If the landlord and the tenant enter into an amendment to the lease agreement, the lease relationship will undoubtedly continue duly for the newly agreed period and the tenant will be entitled to use the subject of the lease. However, the question arises whether this fact will affect a validly agreed enforcement title in the form of a notarial deed obliging the tenant to vacate the property by a date on which the tenant will newly be entitled to continue using the property.
We believe that these are two separate circumstances which, in themselves, do not directly affect one another. In order for an enforcement title to be capable of serving as the basis for enforcement proceedings, it must be both formally and substantively enforceable. The formal enforceability of a notarial deed is clear – it must be a notarial deed satisfying all requirements imposed by the Notarial Code, the obligated party and the entitled party must be duly identified, and the property to be vacated must also be duly identified. If these requirements are satisfied, the notarial deed is formally enforceable as an enforcement title.
Substantive enforceability, on the other hand, requires that the claim to be enforced by the enforcement title is legally due to the entitled party. If the lease had not been extended, there would be no doubt as to such a claim – after termination of the lease, the tenant would use the property without legal entitlement and thereby interfere with the landlord’s ownership rights; the landlord’s claim for the eviction of the property would therefore clearly exist. If, however, the lease were extended, the notarial deed would temporarily lose this substantive enforceability because the tenant would newly be entitled to use the property.
We are of the opinion that the temporary loss of substantive enforceability of an enforcement title does not result in the permanent incapacity of that enforcement title. Once the relevant substantive-law conditions are satisfied, the enforcement title would again become substantively enforceable.
A possible counterargument to our position is that an extension of the term of the lease by an amendment to the lease agreement constitutes an extinctive novation between the landlord and the tenant within the meaning of Section 1902 of the Civil Code.[5] If that were the case, the original lease relationship (and obligation) would cease to exist as a result of the extinctive novation and would be replaced by a new lease relationship (obligation) for the newly agreed term of the lease. We are, however, inclined to the view that such an assessment would be incorrect.
In our view, an extension of the term of the lease (regardless of the valid and effective form in which it is made) constitutes a cumulative novation – that is, a change in the content of the obligation, with the original obligation continuing to exist to the extent that it is not affected by that change. Although, following the recodification, opinions appeared in legal literature that it would be preferable not to use the concept of cumulative novation at all,[6] the Supreme Court has recently settled on the proposition that cumulative novation primarily means a change in the content of an obligation within the meaning of Section 1901 of the Civil Code.[7] Thus, if the parties simply agree that the lease is extended by a further 1 year, this constitutes a cumulative novation of the original lease obligation. The other rights and obligations (e.g. the due date and amount of rent, etc.) remain unaffected and continue in the agreed form; only the original obligation is changed in respect of its duration. Indeed, in the aforementioned judgment of the Supreme Court of the Czech Republic dated 3 March 2020, Case No. 28 Cdo 4168/2019, the Supreme Court held that even a change in the purchase price of a property at a time when title had already been entered in the Land Register and the purchaser had been registered as the owner constituted a cumulative novation of the original obligation specifically as regards the amount of the purchase price. If even a change in the purchase price following registration of title in favour of the purchaser constitutes a cumulative novation of the obligation, then a mere extension of the term of the lease will all the more constitute a cumulative novation.
Since an extension of the term of the lease will constitute only a cumulative novation of the relevant obligation, the original obligation will not cease to exist. However, the question remains as to what effect the cumulative novation has on the validity and enforceability of such a notarial deed.
As indicated above, the authors are of the opinion that a cumulative novation of an obligation per se does not render the notarial deed invalid or unenforceable. If the cumulative novation has any effect at all on the notarial deed itself, which it will in the case of an extension of the lease, it will merely result in a certain temporary “suspension” of the substantive enforceability of the notarial deed.
Accordingly, if the landlord and the tenant have entered into a notarial deed under which the tenant is obliged to vacate the property by 31 December 2027, while at the same time, prior to the end of the lease, the term of the lease is extended by a further year until 31 December 2028, the landlord will be able to use the same enforcement title if the tenant fails to vacate the property upon expiry of this new term of the lease.
In this respect, we refer to the recent Resolution of the Supreme Court of the Czech Republic dated 24 January 2023, Case No. 20 Cdo 3186/2022, according to which the following applies: “In the case of cumulative novation, the original enforcement title is superseded only to the extent of that cumulative novation; to the extent not superseded, the obligation specified therein remains enforceable. In both of the above-described scenarios, the original enforcement title remains effective, provided that it may be enforced after expiry of the additional period for performance.” Put simply, in that case the parties had an enforcement title for payment of an outstanding amount and subsequently, by means of a private-law act, changed the due date of the original obligation in respect of which they already had an enforcement title. The Supreme Court held that the entitled party could continue to enforce its claim on the basis of the original enforcement title, but only to the extent to which that enforcement title was not superseded by the cumulative novation of the obligation, i.e. only after expiry of the newly agreed due date. In the spirit of that decision, we therefore submit that the landlord may continue to file an application for enforcement seeking eviction of the property even after the term of the lease has been extended, but only once the tenant fails to vacate the property after expiry of that extended term of the lease.
In addition to the above decision of the Supreme Court of the Czech Republic, considered in the context of treating an extension of the term of the lease as a cumulative novation of the original obligation, several further arguments support our view.
As the primary argument, we consider the fact that, when enforcing such an enforcement title, the judicial enforcement officer primarily considers whether the landlord has an enforceable enforcement title. The enforcement title will be formally enforceable and will become substantively enforceable upon expiry of the extended term of the lease. The judicial enforcement officer must also consider whether another person has a right in respect of the property that precludes enforcement within the meaning of Section 267 of the Code of Civil Procedure.[8] However, the landlord is not required to enforce the enforcement title through a judicial enforcement officer immediately once this becomes possible. Although this will of course often be the case, the landlord is subject to no statutory obligation to have the tenant immediately evicted through a judicial enforcement officer. This applies all the more in a situation where unauthorised use of the property constitutes an interference with the landlord’s ownership rights,[9] while ownership rights are not subject to limitation (Section 614 of the Civil Code). The right to have the property vacated forms part of the ownership right[10] and is therefore not subject to limitation, and the landlord is not subject to any statutory period within which an application for the authorisation of a judicial enforcement officer must be filed. Nothing therefore prevents the landlord from filing such an application even several years after expiry of the period for vacating the property specified in the notarial deed. If, in the meantime, the tenant remained entitled to use the property (on the basis of the extended term of the lease), this does not in any way diminish the original enforcement title.
Such a procedure would likewise neither interfere with the tenant’s rights nor restrict the tenant’s statutory rights. If, despite the lease having been extended between the parties, the landlord filed an application for enforcement, the tenant could immediately file an application to discontinue the enforcement proceedings and the enforcement proceedings would be discontinued pursuant to Section 268(1)(a) of the Code of Civil Procedure. The tenant would therefore not have to fear eviction from property leased by the tenant during the newly extended term of the lease. Only once the lease between the parties ceased to be extended and the tenant failed to vacate the property and began using it without legal entitlement would the landlord be able to file such an application for enforcement and have the property vacated by a judicial enforcement officer.
The above conclusions have been described in the context of entering into a written amendment to a lease agreement. We are of the opinion that they also apply to other forms of extension of the lease – e.g. by means of an option or automatic renewal. Although these mechanisms are more common in commercial leases of premises used for business purposes between entrepreneurs, there is nothing to prevent the parties from agreeing on an option or automatic renewal also in respect of the lease of an apartment or house for residential purposes. Although options and automatic renewals do not constitute the execution of an amendment but rather the exercise of an already agreed contractual right, this does not alter the above conclusions. In both cases, there will likewise be a cumulative novation and the lease obligation between the parties will change only as regards the term of the lease, while the original obligation will otherwise remain in force.
Practical implications for landlords – investors
We consider the above interpretation favourable for landlords for several reasons. We see the primary advantage in the fact that this interpretation provides a significantly greater degree of flexibility for the residential rental market. In particular, landlords leasing entire apartment buildings or multiple properties often face the fact that the growth in value of their investment portfolio is materially dependent on the solvency of the tenant and the tenant’s compliance with applicable laws.
Although this article is not an economic analysis of the residential rental market, it is clear that the return on any investment in property becomes practically non-existent and the lease of a property may even become significantly loss-making once a tenant begins to occupy the property without legal entitlement and fails to vacate it. In such a case, the landlord has no option but to bring proceedings before a court seeking eviction of the property, while it is well known that court proceedings are lengthy and, if the tenant is familiar with the possibilities for obstruction permitted by Czech law, the proceedings may last several years.
If, however, at the outset of the lease relationship the landlord could enter into such a notarial deed with consent to direct enforceability with the tenant alongside a lease agreement concluded for 1 calendar year or another precisely defined period, the landlord would have at its disposal a document de facto guaranteeing prompt eviction of the property following termination of the lease, without this in itself preventing the landlord from subsequently extending the lease with the tenant or making use of an option or automatic renewal.
If the lease subsequently terminated by expiry of its term, for example after 5 years, and the tenant failed to vacate the property, the landlord would still have the original enforcement title available. That enforcement title would then be not only formally enforceable, but newly also substantively enforceable, since only after expiry of the term of the lease, including all extensions, would the tenant be using the property without legal entitlement, and the landlord could immediately apply to a judicial enforcement officer for authorisation and enforcement of the decision.
For landlords owning multiple properties or apartment buildings, the above may therefore represent an interesting means of better protecting their ownership rights. At the same time, the above may encourage more owners of vacant properties to lease them, since some may be concerned about the difficulty of potentially evicting a tenant, a concern which is reduced under this approach. Ultimately, this could also benefit tenants, as the supply of properties available for residential lease would increase, at least to some extent.
It is, however, also important to bear in mind the cost of having a property vacated with the assistance of a judicial enforcement officer. For such eviction, the judicial enforcement officer is entitled to a “tariff” fee of CZK 10,000 for each eviction, together with a lump-sum reimbursement of expenses incurred,[11] although in practice judicial enforcement officers often require landlords to pay an advance in respect of such eviction. Evictions are often problematic and entail many additional costs, the payment of which may subsequently become the subject of a dispute between the judicial enforcement officer and the landlord as to who must ultimately bear them, since in such cases the tenant is often insolvent or avoids payment. For this reason, judicial enforcement officers frequently require an advance for each eviction, which must be paid by the entitled party (the landlord) – based on our experience, the amount of this advance generally ranges between CZK 30,000 and CZK 50,000. Although this is not an insignificant amount, it nevertheless represents considerably lower costs compared with years of court proceedings and expenditure on legal representation.
It should also be noted that a problem may arise where the landlord terminates the lease by notice delivered to the tenant rather than by the expiry of the term described above. Under Section 2290 of the Civil Code, the tenant is generally entitled to file an application with the court seeking review of the justification of the notice terminating the lease, and the tenant has a relatively generous period of two months from the date on which the notice was received to take this step (which will therefore generally almost coincide with the notice period under the lease itself). If the tenant files such an application, the landlord is generally not entitled to seek eviction of the property in ordinary court proceedings; more precisely, the landlord must initiate such proceedings, but in most cases the proceedings will be stayed until the proceedings concerning review of the justification of the notice terminating the lease have been finally concluded. Although combining both sets of proceedings into a single proceeding may also be possible, the more common approach will likely be to stay the proceedings initiated by the landlord.
In such a case, landlords may be advised not to file an application for the authorisation of a judicial enforcement officer until the proceedings concerning review of the justification of the notice terminating the lease have been finally concluded, as otherwise there may be a risk that the enforcement proceedings will be discontinued and, in extreme cases, it may even be possible to consider the landlord’s liability to compensate the tenant for damage caused by a dishonest exercise of rights. As stated above, as regards enforceability, a notarial deed is not subject to any time limitation and the landlord is therefore not required to rush the filing of an application for the authorisation of a judicial enforcement officer where the tenant challenges the notice received. For this reason as well, landlords may be advised to use fixed-term lease agreements, since even if the tenant’s application for review of the justification of the notice terminating the lease were unfounded, there would be a substantial delay between expiry of the notice period and the final conclusion of the court proceedings, which in extreme cases may take several years.
Conclusion
The primary aim of this article was to present the view that, where an enforcement title in the form of a notarial deed for the eviction of property exists, landlords may extend the terms of leases by means of an amendment, an option or automatic renewal, since this will not invalidate or render ineffective the enforcement title. Although the enforcement title will remain only formally enforceable throughout the extended period, it will also become substantively enforceable upon expiry of the extended term of the lease, and landlords will be able to enforce the decision through a judicial enforcement officer even after several years have elapsed, since an extension of the term of the lease constitutes merely a cumulative novation of the original obligation.
The authors are aware that some may not share their view. They would, however, welcome professional discussion on this issue, since, to the authors’ knowledge, at the time of writing this article the situation described above had not yet been addressed, at least in case law.
Should you have any questions regarding property and leases, termination of leases, eviction of property or any other areas of civil law, we remain fully at your disposal. Please do not hesitate to contact us.
[1] See, for example, Resolution of the Supreme Court of the Czech Republic dated 26 May 2020, Case No. 26 Cdo 2085/2019.
[2] For an analysis of the reasoning in the Resolution, we recommend our previous article on this topic available here: PEYTON legal | Notarial Deed as an Enforcement Title to Vacate a Property.
[3] Act No. 120/2001 Coll., on Judicial Enforcement Officers and Enforcement Activities (Enforcement Code) and on Amendments to Other Acts, as amended.
[4] Act No. 358/1992 Coll., Notarial Code, as amended.
[5] Act No. 89/2012 Coll., Civil Code, as amended.
[6] Pražák, Z., Fiala, J., Handlar, J. et al. (2017), Obligations Arising from Legal Acts under the Civil Code. Prague: Leges, 2017, p. 358.
[7] See, for example, judgment of the Supreme Court of the Czech Republic dated 3 March 2020, Case No. 28 Cdo 4168/2019, or judgment of the Supreme Court of the Czech Republic dated 17 March 2021, Case No. 22 Cdo 173/2021.
[8] Act No. 99/1963 Coll., Code of Civil Procedure, as amended.
[9] See Resolution of the Supreme Court of the Czech Republic dated 10 April 2024, Case No. 31 Cdo 225/2024.
[10] Ibid.; similarly, for example, BODEČKOVÁ, Jana. Section 614 [Rights Excluded from Limitation]. In: PETROV, Jan, VÝTISK, Michal, BERAN, Vladimír et al. Civil Code. 2nd edition (3rd update). Prague: C. H. Beck, 2024, marginal no. 2.
[11] See Section 7 of Decree No. 330/2001 Coll., on the remuneration and reimbursement of judicial enforcement officers, the remuneration and reimbursement of cash expenses of an administrator of an enterprise, and the conditions for insurance against liability for damage caused by a judicial enforcement officer.
Mgr. Martin Heinzel, partner – heinzel@plegal.cz
Mgr. Karel Janeba, junior lawyer – janeba@plegal.cz
20. 8. 2026