When the owner of a rental house wants to regain his possession, because the tenant has stopped paying his rent, he has to file an eviction proceeding for non-payment of rent.
Thus, although the landlord intends to terminate the contract when the tenant stops paying the rent ex art. 27.2 a) of the LAU, must necessarily go to the Court to evict the tenant and return possession of the property, because if the landlord intends to do it himself by force, he may be involved in a criminal offense, such as in a crime for arbitrary realization of one's own right or a crime of threats, coercion, etc.
WHAT TO DO IN A SITUATION OF NON-PAYMENT OF INCOME?
Beforehand, it should be noted that having specialized legal advice is especially beneficial, in terms of legal certainty and cost savings: time plays against the owner (he does not own a property or collect rents).
A.- Extrajudicial claim:
.- At first, the tenant must be contacted by any means to find out the origin of the non-payment and try to reach an agreement for a deferred payment or for a resolution of the rental contract and the eviction of the property.
.- If it is not possible to reach an agreement for the resolution of the contract or after a few days the tenant still does not pay, it will proceed to send a reliable request for payment of rents. Said requirement is manifested of special importance in order to avoid that the tenant can enervate the eviction that could be decreed in the judicial phase (as explained below).
If it persists in its breach, it will be necessary to request judicial assistance.
B.- Judicial claim.
An eviction process is a type of judicial procedure where unpaid rents and the eviction of the home or leased property are claimed, in which we can distinguish the following phases:
1.- Initiation of the procedure: by filing a Demand document, signed by a lawyer and solicitor, before the corresponding court depending on the place where the home is located. The claim is directed in any case against the tenant and, where appropriate, against the guarantor or guarantor, for non-payment of income.
Said demand must be accompanied by Power of Attorney granted notarially or by appearance "apud acta" in Court, lease contract and property title to the property.
2.- Signing of trial and release: the Court, after receiving the claim, will issue a Decree indicating the date of the trial (in the event that the tenant objects) and the date of release or forced eviction of the property.
Said Decree will be notified to the tenant, who will have a period of 10 working days to oppose the demand for eviction.
3. What can the tenant do?
- Do nothing. In this case, it will be judicially launched on the date stated in the Decree.
- Enervate the eviction, that is, pay the amounts owed within 10 days and continue to occupy the home. Such action may only be carried out once during the life of the contract, and provided that there was no prior request for payment.
- Pay the rent owed and hand over possession of the property.
- Surrender the property but do not pay the rent owed, in which case the eviction procedure ends although it will continue with respect to the claim for the rent.
- Formulate opposition to the eviction, in which case the corresponding trial will be held on the indicated date.
4. Termination of the procedure. Finally, the judge passes sentence. If in the trial the existence of a non-payment has been proven, the judge will order the tenant to pay and to evict the property and there will probably also be a judgment in costs, that is, to pay the expenses of the judicial process.
5. Launch. The release is the moment in which the sentence is executed regarding the recovery of possession of the property by the owner and the tenant is evicted.
In general, the attorney general attends the launch, together with a judicial commission appointed by the court and two police officers. It is important in these cases that minutes be drawn up by the judicial commission in charge of the launch to detail the state of the home, for the purposes of possible damages that may be claimed later.
It may happen that the tenant evicts the property before the launch date, either to the owner or by depositing them in the court, and in that case the launch will be suspended unless the owner is interested in having a record of the state of the property.
WHAT IS THE AVERAGE TIME OF AN EVICTION FOR NON-PAYMENT OF RENT?
Although everything will depend on the specific case and mainly on the burden of the courts, the approximate average time is around 6 months from the filing of the claim, including the launch.