My tenant disappeared several months ago without paying the rent and any notice. I want to throw everything in the rental room away and rent it to the other person. Can I do that?
In Japan, the answer is NO. The landlord should gain court’s judgement to remove the tenant’s possessions. If you throw the tenant’s things away without judgement by yourself, such actions may be deemed to be an illegal self-enforcement and, if things come to the worst, it may become criminal acts.
If the tenant breaches the lease contract (e.g., non-payment of the rent by the due date), the landlord may cancel the contract and demand to surrender the property.
However, it is necessary for the landlord to take a legal procedure and gain judgement of a court ordering the tenant to surrender the property. Removing the tenant forcibly by yourself without judgement may become a criminal case. Therefore, the landlord should never change the key of the rental house or enter the rental house and remove things without the tenant’s consent. Even if the lease agreement contains clause providing that the landlord may change the key or enter the rental house and dispose household goods without the tenant’s consent, such clause cannot be executed legally in Japan.
When the judgement ordering tenant to surrender your property becomes enforceable, bailiffs or court execution officers are able to carry out compulsory execution and evict your tenant.
How to gain judgement against missing tenant? “Service by Publication” procedure
To gain such judgement, the landlord should file a lawsuit against the tenant. The landlord should basically find the new address of the tenant to file a case. If you do not know the tenant’s present address, a lawyer can search registration of the tenant by its authority (Family Register Act Article 10-2 (3) and (4)).
However, if the tenant does not properly register their location, the new address will not be found by the registration. If the location of the opponent could not be found by reasonable search, the procedure of Service by Publication may be used. When the court accepts application for Service by Publication, the court will post notice in the posting area and deem that the document has been sent properly to the missing opponent when two weeks have passed (Article 110 (1) (i), Article 111 and Article 112 (1)).
After gaining judgement and eviction process by court execution officers, the rental house returns to the landlord without the former tenant’s things in it and the landlord may find new tenants.
*Family Register Act Article 10-2
(3) Notwithstanding the provisions of paragraph (1), an attorney (including a legal professional corporation; the same shall apply in the following paragraph), judicial scrivener (including a judicial scrivener corporation; the same shall apply in the following paragraph), land and house investigator (including a land and house investigation corporation; the same shall apply in the following paragraph), certified public tax accountant (including a certified public tax accounting corporation; the same shall apply in the following paragraph), social and labor insurance public consultant (including a social and labor insurance public consultancy corporation; the same shall apply in the following paragraph), patent attorney (including a patent professional corporation; the same shall apply in the following paragraph), marine procedure commission agent, or administrative scrivener (including an administrative scrivener corporation) may request the issuance of a transcript of a family register, etc. if he/she needs it in order to execute business concerning a case or clerical work that he/she has undertaken. In this case, the person who makes the request shall clarify his/her qualifications, the type of the business, the name of the client in the case or the clerical work, and the matters specified in the items of paragraph (1) regarding said client.
(4) Notwithstanding the provisions of paragraph (1) and the preceding paragraph, an attorney, judicial scrivener, land and house investigator, certified public tax accountant, social insurance and labor public consultant, or patent attorney may request the issuance of a transcript of a family register, etc. if he/she needs it in order to execute the following business with regard to a case that he/she has undertaken. In this case, the person who makes the request shall clarify his/her qualifications, the type of case, the procedures which he/she is carrying out or wishes to carry out as an agent in the course of his/her business, and the purpose for which the matters entered in the family register will be used:
(i) in the case of an attorney, representation services for court proceedings or for out-of-court proceedings involving civil or administrative dispute resolution (in the case of a legal professional corporation, excluding representation services prescribed in the items of Article 30-6, paragraph (1) of the Attorney Act (Act No. 205 of 1949))
*Code of Civil Procedure
(Requirements for Service by Publication)
Article 110 (1) In the following cases and upon petition, the court clerk may effect service by publication:
(i) if the party’s domicile and residence are unknown, and no other place where the party may be served is known;
(Manner of Effecting Service by Publication)
Article 111 Service by publication is effected by the posting, in the posting area for the court, of notice that the court clerk has retained the document to be served and will deliver it to the person that is to be served at any time.
(When Service by Publication Takes Effect)
Article 112 (1) Service by publication takes effect when two weeks have passed since the day on which the posting under the provision of the preceding Article was made;