Tenancy Agreements and
the Eviction Process

What to do when the tenant fails to pay, and what you should not do

It is a common place that one of the main risks involved in letting a property is the tenant’s failure to pay the rent. In most of the cases, it starts with the tenant’s making excuses when the first month is unpaid; it follows with a proposal to set off the “security moneys” paid by the tenant at the beginning to cover damages in the property with the unpaid rent; subsequently, and in order to put the landlord’s mind at rest, a “formal” promise to attend payment “next month or then he would leave voluntarily” is often made. In the end, the result is all the same: before the owner realizes he has to take serious action to get rid of the tenant, there are at least three months in arrears and there is no prospect of the tenant’s leaving in the short term. If you add the time the courts have taken in eviction proceedings, and the fact that August is a non working month for civil proceedings, the landlord takes altogether seven to ten months in having his property back.

As many people depend on the rent to face mortgage payments, experience tells that many ill-advised landlords take desperate measures, which will only increase the problems: cutting the water and electricity supplies to force the tenant away, cutting down the TV antennas, changing locks in order to avoid him coming back, getting into the property and throwing away the tenant’s possessions, and sometimes even direct threatens (personally or by phone) or even physical attack. Though the list is probably endless, the point is that these measures amount to criminal offences under Spanish law, so that the daring landlord finds himself with a criminal record and fined in no time, whilst the tenant is still living in the property. Frustrated landlords should know that cutting the supplies or changing the locks is a coercion offence, entering into the property is unlawful entry, in both cases with the possibility of prison… Consequently, the only legal way to get rid of a tenant is to start legal action through an eviction process.

It is true that the laws regarding eviction in Spain have been severely criticised because of their lack of effectivity, but this has been mainly to the fact that the law has always been trying to protect the tenants (supposedly “weak” party to the contract) against the landlords’ abusive behaviours. The truth is that the tenants have always used many tricks to paralyze or delay the process: for instance, tenants have taken advantage of the praiseworthy necessity of personal notification of the eviction writ, so that when they have never been found at the rented property (because the leave, they never stay there in the mornings and therefore they do not pick up the notifications at the post office, etc), then the court had to start investigating where they may roam in order to notify them, and this has typically delayed the process easily for more than 3 months. Another typical trick was requesting in the last minute the legal aid to litigate in the eviction, which led to a further delay of 1-2 months whilst the Bar granted a solicitor to the tenants.

However, the recent laws have changed this situation for the better: from the 23rd December 2.009, the court will try to notify the writ at the rented property once, and if the tenant were not found there, then the notification would be put on the courts board. This will surely shorten the notification time to 2 months instead of the 5 months it has been taking. Furthermore, the legal aid has to be applied for by the tenant within 3 days after receiving the courts eviction notice, otherwise the process shall not stop until the solicitor is granted. Finally, the normal formalities have been simplified, i.e. it is no longer necessary to request expressly the execution of the ruling after this is firm, so that once the ruling is issued, the execution should start automatically. As a result, the landlord can expect a ruling within 2-3 months after starting the process, and the whole eviction can take place in 5 months altogether, or even less.

It is true that the legal changes are still unknown to most people, but in my opinion, their effectivity relies mainly on the actual capacity of the landlords to react timely. It is of little relief that the law now protects the landlord, if the same landlord waits 4 months to take legal action. In short, the landlord should not wait more than one month to request formally and in writing payment of the arrears. In the event such request is not attended within one month, the following step is submitting the writ at court, seeking payment and eviction of the tenant.

Please call us or make an appointment to discuss the process with one of our lawyers.