I. Introduction
Currently, the rental market in Spain is on the rise, although it still remains one of the weakest in Western Europe, showing an unbalance between supply and demand. This article addresses those property owners (potential landlords) who are reluctant to rent their houses or premises, fearful of non-payment on the part of tenants (lessees) or of not recovering possession of their properties.
In this article we shall distinguish between two common situations which a property owner may face:
- The tenant stops paying the rent during the period the lease agreement is in force;
- The tenant does not leave the house once the lease agreement has terminated.
II. Eviction for non-payment of the rent
Where the non-payment of the rent occurs, a lawsuit may be brought against the tenant before the court where the house or the premises is located.
In said lawsuit, the accumulated debt at the time of filing the lawsuit shall be claimed, in addition to all rents accrued during the proceedings, as well as the costs of said proceedings.
Once the lawsuit has been received by the court, and after its acceptance for processing, the tenant will be required to:
- Within a 10 day deadline: (i) vacate the property, (ii) pay the owner the amounts claimed, or (iii) in the case of exercising the right to avoid the eviction, pay the total amount owed (or deposit said amount with the court or a notary public).
- Or, within the same deadline, file an appeal with the arguments supporting why the claimed amounts are not owed, in which case a court hearing will be held on the date set by the courts.
If the tenant voluntarily vacates the property within the aforementioned deadline of ten days, the eviction proceedings shall be deemed concluded, without prejudice to enforcing the payment of the claimed amounts still unpaid, where applicable. The proceedings shall also come to a close if the owner accepts the exercise of the right to avoid the eviction (which implies that the tenant may continue with the possession of the property despite the claim having been filed).
On the other hand, if the tenant does not vacate the property, does not pay the amount claimed, and does not oppose the claim, the eviction shall go ahead directly on the date and at the time set by the courts (when so requested in the claim).
Therefore, as it may be seen, in such cases when the tenant remains passive, the law establishes a fast route which allows the recuperation of the possession of the property in a short term (approximately between two and four months, depending of course on the work load of the courts in charge of the proceedings).
III. Eviction proceedings upon the expiry of the contractually or legally fixed term
In contrast, for those cases where the tenant does not leave the property once the contract has terminated, the eviction procedure is not as quick as in the case of non-payment of rent.
In such cases, once an eviction claim has been filed against the tenant before the court corresponding to the location of the dwelling or premises, and once accepted for processing, the claim shall be notified to the tenant, so that he/she may respond in writing within the term of ten days.
In the claim, the monthly rent generated up until the effective handing over of the property may also be claimed, taking the most recent rent as a reference, as well as the costs of the proceedings.
The requirement for a written response implies that if the defendant does not respond nor reply to the claim, they shall be declared to be in default, and a judgment shall be passed without any further proceedings, establishing a date and time for the eviction (when so requested in the claim).
However, if the tenant responds to the claim, a court hearing shall take place upon the request of either of the parties or if deemed appropriate by the courts. If this is not the case, judgment shall be passed without any further steps being taken, establishing a date and time for the eviction (when so requested in the claim).
IV. Conclusion
As we can see, when faced with an eviction due the expiry of the contract, the eviction of the property shall not take place, until at the earliest, the date of the notification of the judgement to the defendant (the tenant voluntarily leaves the property before the date set for the eviction).
On the other hand, when the eviction is based upon the non-payment of rents, the possibility exists that the tenant vacates the property within the deadline of ten days, as from the date of notifying the claim, which means that the owner may recuperate the possession of his property several months earlier than in the case of eviction proceedings due to the expiry of the rental contract.
It must be taken into account that the non-payment of only one rent entitles the owner to terminate the rental contract and to evict the tenant for the non-fulfilment of obligations, thus it is more advisable to file the claim against the tenant as from the first occurrence of non-payment, than to wait for the contract to terminate before evicting.
Soon to come, further articles regarding the enforcement of upheld eviction judgments.
More to be followed on the enforcement of the favourable judgements.
Carla Villavicencio
Vilá Abogados
For more information, please contact:
February 17th, 2017
