Service of a Writ During a Tenant's Absence Abroad
A bailiff in Antwerp must serve a summons on a tenant, Mr. Peeters, who rents a ground-floor flat at a specific address. The landlord's lawyer instructs service before a hearing in 12 days. On the first visit, the bailiff finds the flat locked, no answer, and a neighbour states Mr. Peeters has been working in Spain for three weeks and returns only at weekends. The mailbox is full. The bailiff knows the building has a concierge who accepts mail for residents but is not an employee of the tenant. The summons concerns unpaid rent of EUR 4,800 plus interest. The bailiff must decide whether to leave a copy, serve at the registered domicile, use the concierge, or apply an alternative method, and must document everything in a proces-verbaal. The tenant's registered address in the population register is the same flat. Time pressure is real because the hearing date is fixed.
1. What service method should the bailiff choose on the first visit, and why?
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The bailiff should not treat the concierge as a person residing with the tenant. A concierge who merely accepts mail is not a person at the same residence in the sense required for substituted service at the home. Leaving the copy with the concierge risks nullity because the recipient is not part of the tenant's household and may not pass it on reliably.
The registered address matches the flat, so domicile is not in doubt. The problem is absence, not unknown address. The correct first step is to record the facts in a detailed proces-verbaal: date, hour, locked door, no answer, full mailbox, neighbour's statement about Spain, and the concierge's status. The bailiff should then attempt service again, preferably on a weekday evening or Saturday when the tenant is likely present, since the neighbour said he returns at weekends. If personal service remains impossible, the bailiff may consider the legally permitted alternative for a known domicile, but must verify the current statutory conditions rather than assume. The key judgement is that substituted service requires a qualifying person, and a mail-accepting concierge does not automatically qualify.
2. If the bailiff ultimately cannot meet the tenant personally before the hearing, what should the proces-verbaal contain and what procedural risk must be flagged to the instructing lawyer?
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The proces-verbaal should contain a chronological account of every attempt: dates and exact times, whether the door was locked, whether lights or sounds indicated presence, statements of the neighbour and concierge with their identities where possible, photographs or notes of the mailbox state, and the reason each attempted method was or was not used. It should state the registered address checked and the source consulted.
The procedural risk to flag is nullity of service if the method does not meet the statutory requirements, which can lead to the summons being declared void and the hearing postponed. The lawyer should be told immediately so the hearing date can be managed, and so the court is not asked to rule on a defective service. The bailiff should not backdate or embellish the record; accuracy protects the bailiff's own liability. If an alternative method is used, the proces-verbaal must explain precisely which legal basis was applied and why the conditions were met, so a later court can assess regularity.