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Old 05.12.2012, 16:04
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Filing a Betreibung: deposit not returned.

Hello, all you financial wizards. I've done some EF searches, but couldn't find exactly what I was looking for, so...

Here's my situation: I moved out of a WG (shared flat) in September and have still not received my deposit returned. I was subleasing (that is, my name was not on the lease) and I did not have a rental contract. When I left, the lease holder (Hauptmieter) promised to return my deposit as soon as the new flatsharer paid in his part of the deposit. This has still not happened.

I get calls periodically saying that the lease holder will refund this sizable chunk of money just as soon as this, that, or the other happens. So many delays and excuses. On one of these calls she flat-out said that she couldn't possibly return my deposit as she needed to use my money as part of HER deposit on a new flat!

So, I am a zero on all things governmental and financial. Can someone here point me in the right direction? I hope I can file a Betreibung against her. What I don't have are any papers. I don't have a sublease. What I do have are the electronic banking records which show that I transferred a fixed amount (marked "miete") into her account, and a one-time sum of "kaution." I also have some emails I have sent her requesting payment (though her responses have always been by sms or telephone...)

So:
Can I file a Betreibung based on the evidence that I have?
Can I add the Betreibung fees to the amount owed?

Thanks so much!
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Old 05.12.2012, 16:10
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Re: Filing a Betreibung: deposit not returned.

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So:
Can I file a Betreibung based on the evidence that I have?
Can I add the Betreibung fees to the amount owed?
Good one.... Delicate case. In order to find out for sure, drop by the Betreibungsamt in question (her Gemeinde) and ask. Bring all documents you have and the SMSs too.

If the Betreibungsamtler says OK, good to go... then yes, you can include the fees to the amount. Did a Betreibung here recently and all costs went to the non-paying customer. Please do let us know how it works for you!
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Old 05.12.2012, 16:56
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Re: Filing a Betreibung: deposit not returned.

Wow that's unbelievable!

What's more unbelievable is that you were sub-letting and transferred money without a contract!

I hope you get the money back, and if she is already planning on moving, do you even know her new address???
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Old 05.12.2012, 17:28
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Re: Filing a Betreibung: deposit not returned.

This is often the case in shared flat situations where the main renter does not want to give the deposit back. No contract so that is tough as you should have some kind of a sublease contract to take to the authorities.
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Old 05.12.2012, 17:51
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Re: Filing a Betreibung: deposit not returned.

A rental contract is valid even if concluded orally.

If you've still got the text messages where she recognizes implicitly or explicitly the fact that you paid the deposit you're fine. But don't delete these messages.

First, you should send her a registered letter (not an email!) stating clearly all the facts and setting a deadline. You should make clear to her that you'll start a debt enforcement procedure (Betreibung) against her if the deadline is not respected. Only if the deposit is not paid back within the deadline you should file a Betreibung. For this you have to go to the Betreibungsamt of the municipality where the woman lives. There you'll get all the forms and information you need.
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Old 05.12.2012, 18:04
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Re: Filing a Betreibung: deposit not returned.

If she did not deposit your money in a bank "rental deposit" account in your name then yes, you can send her a Betreibung as she was holding your money illegally.

However, in order to send a Betreibung you need to show "cause". Without a rental contract this may be difficult unless you have email correspondence showing some commitment on her part to refund the money.
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Old 05.12.2012, 18:10
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Re: Filing a Betreibung: deposit not returned.

Just tell her you will take out a betreibung against her and that will kill her chances of moving to a new apartment. Whether you have enough claim etc doesn't even come into it...she'll pay.
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Old 05.12.2012, 18:20
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Re: Filing a Betreibung: deposit not returned.

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If she did not deposit your money in a bank "rental deposit" account in your name then yes, you can send her a Betreibung as she was holding your money illegally.

However, in order to send a Betreibung you need to show "cause". Without a rental contract this may be difficult unless you have email correspondence showing some commitment on her part to refund the money.
Actually you don't have to give any reasons to start a Betreibung. All you have to do is to fill in a form and advance the costs of the procedure. A Betreibung can be easily stopped by the debtor by entering an objection (Rechtsvorschlag). In this case, the creditor has to go to court in order to prove the validity of his claim.

In most cases, the threat of filing a Betreibung is enough to make the debtor pay. Most debtors are afraid of having a record in the debt collection register (Betreibungsregister), which can make live difficult when looking for a flat or a job.
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Old 05.12.2012, 18:32
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Re: Filing a Betreibung: deposit not returned.

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Here's my situation: I moved out of a WG (shared flat) in September and have still not received my deposit returned. I was subleasing (that is, my name was not on the lease) and I did not have a rental contract.
Did you use that address as your legal address when you registered at the Gemeinde? I do hope that you were registered. If so, then you should go to the Gemeinde and request a confirmation of your residency there. This document will help you greatly to make a claim against the main tenant (lease holder).
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Old 05.12.2012, 19:10
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Re: Filing a Betreibung: deposit not returned.

As mentioned by others:
- you can initiate a Betreibung without evidence. You do however need give the reason for the Betreibung, e.g. return of "kaution".
- it is only if she objects to the Betreibung that you would need to go to court in order to get your money.

If you can get a get a "signed" letter (not email) of her in which she acknowledges that she owes you the money and will pay you back, that would be great since then you could use an simplified court proceeding to go forward (http://www.admin.ch/ch/d/sr/281_1/a82.html).
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Old 05.12.2012, 19:47
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Re: Filing a Betreibung: deposit not returned.

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As mentioned by others:
- you can initiate a Betreibung without evidence. You do however need give the reason for the Betreibung, e.g. return of "kaution".
You're obviously right: you need to state the reasons for your claim but you don't have to provide any evidence at this stage.
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Old 06.12.2012, 00:30
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Re: Filing a Betreibung: deposit not returned.

Thanks everyone, for your responses. This helpful spirit is the reason I keep my account here open.

Yes, in hindsight, a contract would have been a good idea, but there were some special circumstances at the beginning (long story, unimportant here) which made it seem unnecessary at the time.

I'll send her a registered letter now, while I'm looking into the Betreibung process at the Basel office. It's pretty clear that I've lived there (having been registered there, having had contact with the landlord, plus all those e-banking 'Miete' transfers), so even without a physical contract I'm confident that I will be able to back up our oral contract.

What a pain.
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Old 06.12.2012, 23:06
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Re: Filing a Betreibung: deposit not returned.

Yes if you have all the above proofs you should be fine.
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Old 07.12.2012, 16:38
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Re: Filing a Betreibung: deposit not returned.

Sounds like another job for 'Fat Tony' and the boys...
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