In a lease relationship, a security deposit is a sum of money used to ensure satisfaction of the tenant’s obligations and liabilities to the landlord in the event that the tenant fails to pay rent or breaches another obligation under the lease. A security deposit is primarily required when renting an apartment, but it may also occur when renting non-residential premises or in other legal relationships. This article further discusses the issue particularly in relation to the lease of an apartment.

In addition to the usual pitfalls of a security deposit, such as the limit of its amount being three times the rent or the necessity of the landlord adding interest on it, another pitfall may be the possibility of the security deposit being affected in distraint proceedings. If there are distraint proceedings against the tenant, the bailiff may terminate the lease on behalf of the debtor (tenant). At the time of termination of the lease, the security deposit becomes due and payable and, before paying it to the debtor (or, if applicable, setting it off against his own claims), the landlord will be required by the bailiff to remit the security deposit to the bailiff for the benefit of the beneficiary in the distraint proceedings.

The security given to the landlord loses its significance here, since the landlord’s right to satisfy his claims is no longer enforceable and, what is more, the landlord is obliged to pay interest at the statutory rate together with the security to the hands of the bailiff. Any claims by the landlord against the tenant will have to be pursued through civil law, where there is also a risk that the tenant will not be evicted due to his or her inability to pay, which may be an obstacle to finding other housing.

The described procedure of the bailiff is not legally defective. Although it is not a common method of conducting distraint proceedings, it is rightful and the possibility of its application cannot be excluded.

Thorough screening of the tenant’s person in terms of his/her insolvency history or pending distraints is highly desirable, but does not mean that such a situation could not arise in the future. Even an initially trouble-free tenant without any distraint proceedings may find himself in a situation, where distraint or insolvency proceedings are initiated against him during the course of the tenancy.

Another very problematic aspect of tenancy relationships is where the tenant refuses to move out at the end of the tenancy. It is commonly reported and published that the landlord may be criminally liable if he moves the tenant from the apartment himself and changes the locks, which may constitute a violation of the freedom of the home.

In addition to the above criminal liability of the landlord, however, the criminal liability of the tenant may also arise with respect to the facts of unauthorized interference with the right to the house, apartment or non-residential premises. Previous approach in this situation was that the issue of tenants remaining in the apartment after the end of the tenancy is a purely civil matter, see the Constitutional Court’s ruling II. ÚS 413/04, however, this case law has now been broken in view of the changes to the tenancy relationship contained in the new Civil Code, and the application of criminal law in these relationships against the tenant is possible if the tenant does not leave the apartment after the end of the tenancy relationship. These conclusions follow from the resolution of the Supreme Court, file no. 6 Tdo 1161/2020.