The Enforcement Sale and the Tenant Who Will Not Leave
A private enforcement agent has seized a two-room apartment in Plovdiv and sold it at public auction to Vesela for 132,000 BGN; the sale was confirmed by the court. The former owner's brother, Rumen, occupies the apartment under a ten-year lease signed eleven months ago at a rent of 200 BGN per month, far below market, with the entire rent paid in advance in cash. The lease was registered in the Property Register two days after the seizure was recorded. Vesela asks notary Kolev to certify a deed confirming her acquisition and to advise how to obtain possession. Rumen produces the lease and refuses to leave.
1. Can the lease be asserted against Vesela, and what should the notary advise about possession?
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A lease concluded after the seizure was recorded cannot be asserted against the buyer at a enforcement sale, because the seizure makes the property available for sale free of later encumbrances. The timing is decisive: the lease was signed after the seizure entry and registered only two days after it. The below-market rent, the ten-year term and the prepayment in cash all suggest a collusive arrangement to obstruct the sale.
The notary should explain that the auction buyer acquires the property and may seek removal of occupants who derive their title from the former owner after the seizure. The notary should not certify a deed that recognises the lease as binding. Instead, Vesela should apply to the enforcement agent for delivery of the property and, if resisted, seek judicial assistance. The notary may certify the deed recording her acquisition on the basis of the court's confirmation and the agent's deed, but must state the actual factual and legal position on the lease.
2. What documents must the notary verify before certifying Vesela's acquisition, and what if the court confirmation is still pending?
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The notary must verify: the enforcement agent's deed of sale and the record of the auction; the court's confirmation of the sale; the entry of the seizure and its date; the register entries for the apartment, including the lease; proof of payment of the price; and the identity of Vesela. The notary should also check that no appeal against the confirmation is pending and that the time limits have expired.
If the court confirmation is still pending, the acquisition is not final and the notary must not certify a deed of acquisition as if title had passed. He may certify a declaration or record of the facts, or advise Vesela to wait. Certifying prematurely risks a deed that does not reflect the legal position and exposes the notary to liability. The notary should also warn Vesela that the lease dispute may require separate court proceedings and that the deed does not itself deliver possession.