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Rentals and Eviction

by | Jan 25, 2010 | Property Law

A new law has come into force: the law 19/2009 of 23rd November regarding measures to enhance and streamline court processes for rentals and the energy efficiency of buildings. The new legislation attempts to streamline the proceedings to evict tenants who do not pay their rent.  Several articles of the Residential Tenancies Act, the Civil Procedure Code and the horizontal property laws have been amended, and the keys of the reform are as follows:

  • Previously a period of two months had to elapse between the time when the landlord demanded in an irrefutable manner (notarial or burofax) the payment of rental arrears and the time when he could file a complaint, this period has now been halved.  The tenant can avoid eviction by paying all the rent owed.
  • Article 437.3 of the LEC (Ley de enjuiciamiento civil or Civil Procedure Law) has changed in the sense that if the landlord agrees to waiver the tenant’s debts and costs, he may recover the property more quickly, but the tenant must agree to give up the possession of the property.  In any case the tenant has a minimum of 1 month to leave the property after he has been notified of the lawsuit.  Obviously the landlord is giving up his rights for payment of any amounts due, but if the tenant is insolvent sometimes it is better to regain possession, as it will not be possible to enforce the ruling issued against the assets of the tenant if he does not have any.
  • The ruling ordering the eviction will be sufficient to execute the eviction.
  • The judicial process which is used is that of “procedimiento verbal” (oral proceedings) which are much faster.
  • The new law also improves the conditions under which contracts may be terminated for example where the landlord does not wish to extend the contract when he needs to use the property for himself, for his parents, his children, or even for his spouse in cases of divorce or the annulment of a marriage.  In these cases the landlord / parents / children … have to start occupying the property within three months after the tenant had been evicted, otherwise the landlord could be liable to pay compensation for damages to the tenant and be obliged to allow him to return to the property.
  • In the demand the landlord can request the eviction (‘lanzamiento’ or expulsion), if he does not request this at the time then he will have to follow the procedure when the sentence is passed.  If the property is the main residence of the tenant he will have one month to leave the property unless the judge decides that there is a justifiable reason for him to remain and can agree to extend the deadline for another month. If the defendant does not appear at the proceedings and / or does not attend the hearing, or even when the sentence was condemnatory but not picked up by the tenant in court the process will be longer.
  • Regarding the accumulation of legal actions, the limit of 3,000 euros which is fixed in the Article 438.3.3 of the Civil Procedure Law 1/2000 dated 7th January, is deleted in the case of a judicial procedure for eviction due to lack of payment, which means that apart from the amount that is being claimed, the landlords can claim jointly the rental and other amounts owed (electricity/water/community payments) using the “procedimiento verbal”.

This Act offers theoretically the possibility of fast eviction within a period of two weeks, in reality due to the saturation of the courts at present, the process is now closer to 10 months.
Our advice to Landlords is that when you come to writing up your rental contract you should always seek the advice of a reputable lawyer who has experience in these matters.