Declaratory judgment not enforceable?

Declaratory judgment not enforceable?

If you have a judgment or order you have received, you want (in most cases) to be able to execute it immediately. To do that, you can ask the court for the judgment or order ‘enforceable‘ to explain. You can read more about this in this item. But what about judgments in which a declaratory judgment is made? Those are not declared provisionally enforceable (with one exception). Not even if requested. Then what about judgments in which a VvE decision is overturned? Trial lawyer Myrthe de Vries explains how this is.

Types of judgments

Court judgments are in principle only enforceable when the judgment in question has become res judicata. This is the case when no (ordinary) legal remedies against the judgment are left open. In order for the judgment to be enforced immediately, it must be declared provisionally enforceable by the court.

Sometimes the law states that a judgment cannot be declared provisionally enforceable in view of its content. This is the case, for example, with the claim for termination of a residential rental agreement. That agreement remains in effect until the court's ruling is final. The legislature believes this is appropriate for such rulings.

The nature of the proceedings may also mean that the judgment or order cannot be declared provisionally enforceable. There are generally three types of judgments. Condemnatory, declaratory and constitutive. A condemnatory judgment entails an order to give, do or omit. A declaratory judgment establishes a certain existing state of law. A constitutive judgment creates a new legal state.

Conviction and new legal status

A condemnatory judgment can be declared provisionally enforceable; the condemned person must then carry out the sentence immediately, even though the judgment is not yet res judicata. An example of such a judgment is when someone is sentenced to repayment of a money loan.

Constitutive judgments can, in principle, also be declared provisionally enforceable. Then the new legal situation arises immediately, even though the judgment has not yet become final. An example of such a ruling is when a resolution passed by an association meeting is annulled.

Establish existing legal status

By its nature, a declaratory judgment (or a declaratory order) cannot be declared provisionally enforceable. Think of a judgment in which the court declares as a matter of law that a decision taken is void, and therefore never existed. A declaratory judgment determines what the legal situation is. This cannot then be enforced. This is because by the court order it is (simply put) ‘simply established’ that a fact is a fact. Unlike a payment order, there is therefore nothing to enforce. Until otherwise decided on appeal, the legal relationship between the parties is as stipulated in that judgment. Provisional enforceability, therefore, no longer yields anything either.

What this means for practice

In practice, this means that if, for example, a VvE decision has been overturned but that court decision has not been declared provisionally enforceable, that the annulment of the decision is suspended at the time of appeal. In fact, when the annulment is suspended, it can be argued that the decision taken is revived until a judgment is rendered.

For example, in a situation where it has been ruled that a property boundary has been moved by prescription, and that court decision has not been declared provisionally enforceable, the property boundary is still moved by prescription at the time an appeal is filed and throughout those proceedings. Only when it is ruled on appeal that there is no statute of limitations does this become different.

Trial lawyer must consider (non-)enforceability of judgment

It is up to the trial lawyer to take this into account when drafting a procedural document. In the example of the VvE, the applicant's attorney can ask the court to declare the judgment provisionally enforceable. The VvE's attorney can ask the court to order that the effects of the annulled decision remain in place until a final judgment is rendered. And in the inheritance boundary dispute it may be important to also seek an enforceable judgment. After all, the fact that it is established between the parties that the property boundary has shifted is often only part of the dispute. For example, the plaintiff may also want the other party to be ordered to vacate land, remove a boundary fence, or cooperate in erecting a boundary fence. Those orders, in turn, can be declared provisionally enforceable.

A judgment you can't do anything with (yet)? Get proper advice!

So how a litigation document is framed can have major implications for what you can do with a verdict at the end. Or precisely what you cannot do with it. Therefore, get proper advice. Have you received a judgment that is not enforceable? Then contact us to see how we can work around that. Often a summary proceedings Whether an incident will still be resolved somewhat.