I. Introduction

On 10th October, the Law 37/2011 on Measures for Facilitating Procedures was adopted, and published in the Official Gazette of the Spanish State (B.O.E.) No. 245 on 11th October 2011. This law, which entered into force on 1st November 2011, continues the line of procedural reforms already initiated in response to the exponential rise in litigation in recent years.

As its name suggests, its main objective is the incorporation of certain measures to facilitate the proceedings in civil, criminal and contentious and administrative orders. Therefore, Law 37/2011 introduces measures that are designed in order to guarantee the fundamental rights of citizens, to optimize processes, to delete or substitute unnecessary procedural steps or to limit the abusive use of court action.

This report is limited to analyzing the most important changes concerning civil procedure.

II. Changes regarding eviction proceedings.

Amongst the changes to the Spanish Civil Procedure Act (LEC), those concerning the processes of eviction for non-payment of rent or due amounts stand out, which are generally processed in oral proceedings.

Following the recent reform there are expectations of shortening said procedures, the main novelty being the possibility of carrying out the forced eviction of the rented property without the necessity of holding a trial, always provided that the tenant remains passive after the notification of the lawsuit or that he refuses to receive such notification.

Thus, with the reform of the LEC, a court hearing can be avoided and the possibilities of the debtor to delay the enforecement are reduced. Until the entry into force of Law 37/2011, the court hearing was essential in every single case and could significantly delay the completion of the procedure.

A critical point is that the enforcement of the eviction remains dependent on the filing of  a subsequent application by the claimant. The reform is not broad enough regarding this point. It would have been preferable for the enforcement to be carried out automatically as foreseen by operation of law without the necessity for another such application.

III. Other changes to the Civil Procedure Act

1. With regard to oral proceedings

From now on, the following procedures shall be conducted with an oral, rather than an ordinary trial:

– Third-party claim to ownership (Article 599 LEC).

– Third-party intervention with a paramount right (Article 617.1 LEC).

– Procedures relating to “renting” contracts, that is to say the rental of movable property (Article 215.1 No. 11 LEC).

2. With regard to appeals

The formality of preparing appeals, that is to say, appeals in the first instance, appeals in the higher regional court and proceedings for procedural infringement (Articles 457, 470 and 479 LEC) have been suppressed. Such preparation consisted in the claimant giving notice of his intention to appeal a certain judgment.

The possibility to appeal against judgements arising from oral proceedings in respect of amounts not exceeding 3.000 Euro has been abolished (Article 455.1 LEC). Furthermore the term for appearing in person before the court of appeal has been reduced from 30 days to 10 days (Article 463.1 LEC).

Finally, the amount involved in the dispute in order to be able to appeal to the higher regional court has been generally increased from 150,000 Euro to 600,000 Euro (Article 477.2 No. 2 LEC).

3. With regard to the enforcement of judgments by means of public  auction

By means of the revision of article 651 and the introduction of a new sixth additional provision of the LEC, the codes of procedure applicable to public auctions of both movable and immovable property, with no bidders, have been amended.

a. Movable property

In public auctions for movable property with no bidders the new Law 37/2011 introduces the prohibition that the creditor awards the bid to himself, assigns the movable property awarded in auction or awards it to a third party for less than 30% of the appraised value of the property (Article 651 LEC).

b. Immovable property

Regarding the auction of real estate as of now there is a special rule applying only to cases where immovable property not constituting the debtor’s habitual residence is concerned and there is no bidder. In such cases, the creditor may request that the property be awarded to himself for the amount of at least 50% of the appraised value of the real estate or for the amount owed for all items (sixth additional provision of the LEC).

However, when it comes to the auction of the debtor’s habitual residence, as before, the creditor may only request that the property be awarded to himself for payment of at least 60% of the appraised value of the real estate or for the amount owed for all items (Article 671LEC).

4. With regard to the payment procedure

The monetary limit set forth regarding the payment procedure amounting until now to 250,000 Euro has been eliminated (Article 812.1 LEC). Therefore, the only requirement for this procedure is that the debt must be a monetary debt, which is liquid, fixed, due and payable. With this modification, the Spanish payment procedure is harmonized with the European payment procedure.

5. With regard to the taxation of costs

In the event that the claimant is obliged to pay the official fee for the exercise of judicial authority, such fee is expressly included within the concept of the costs of the proceedings (Article 241.1 No. 7 LEC), as it is considered a necessary expense.

Consequently, following the reform, if the claimant obtains an order against the defendant to pay court costs in accordance with Articles 394-398 LEC, the latter has to compensate not only the lawyer and barrister (procurador) fees, but also the  official fee for the exercise of judicial authority paid by the claimant.

IV. SUMMARY

The measures taken to speed up the civil procedure can be positively evaluated because they will help to shorten the duration of the processes and improve their overall effectiveness. However, the reform has not been broad enough. As before, there remain many areas where processes can be further accelerated and simplified.

For more information, please contact:
info@vila.es/en