A complete guide to understanding the process of eviction for non-payment of rent, everything you need to know and how to protect yourself.
An eviction process for non-payment of rent is the judicial process that the landlord or owner of a property or premises has to go through in order for the judge to take possession of the property from the tenant who does not pay and return it to the landlord.
Before the eviction lawsuit is filed, it is common for the landlord to have tried to solve the problem amicably, but in this publication we will focus on what happens after the lawsuit is filed.
Table of contents:
Eviction proceedings for non-payment of rent
Normally the lawsuit is filed claiming the debt and, in addition, requesting eviction for non-payment. It would be possible to claim only the debt, but this would no longer be an eviction process, but a rent claim.
It does not make much sense to claim rent without requesting eviction, especially when eviction is precisely the most powerful tool for pressuring the landlord to pay the rent.
Therefore, the lawsuit usually claims the debt, the eviction and also the costs, i.e. the judge orders the tenant to pay the landlord what the landlord has spent in the eviction process (lawyer and solicitor's fees).
Two proceedings in one
Court proceedings are both declaratory and executory. We will not go into this at length, but it is good for you to understand it, because it is important for the subsequent explanations in this guide.
When we file the lawsuit for eviction we are in the declaratory phase, that is, the judge has to declare that the debt exists and, therefore, has to declare the eviction for non-payment of rent.
So the declaratory phase starts with the lawsuit for eviction and ends with the judgement (or the decree of archiving, we will explain what this is).
Once the declaratory phase is over, in which the tenant has been sentenced to eviction, the tenant has to return the keys. And if he does not return them, a new lawsuit must be filed, which is called an executive lawsuit, which serves to enforce (even by force) what the judge has ordered in the declaratory phase.
However, in eviction proceedings, the law states that it is not necessary to file two lawsuits (the eviction lawsuit, which is the declaratory one, and the enforcement lawsuit), but if the initial eviction lawsuit asks for the eviction to be enforced in the event that the tenant is sentenced, then it is not necessary to file an enforcement lawsuit and the eviction is carried out directly, on the corresponding date. That is why we say that they are two processes in one.
The lawsuit for eviction due to non-payment of rent
The lawsuit for eviction due to non-payment must be signed by a lawyer and a solicitor, whatever the amount of the debt.
It must be filed in the courts of the city where the property or premises are located (well, it is usually in the same city, with some exceptions).
Together with the lawsuit for eviction, a copy of the rental contract must be submitted (in principle, the original is not necessary). If there is no contract, proof of the rental relationship must be provided, such as emails, bank receipts of the rent payments, etc.
It is also very interesting that the lawyer provides, together with the lawsuit for eviction, a general power of attorney for lawsuits (free of charge) because this saves 15 or 20 days and speeds up the process.
The Decree of Admission
The admission decree is the document issued by the court approximately one month after the lawsuit for eviction has been filed. This document already contains the dates of the trial and the eviction.
The lawyer receives the admission decree via internet, and the client is informed of the trial and eviction dates. As for the tenant, he receives the admission decree on paper, at the rented flat (or the rented premises).
The admission decree says a lot of things, but the most important ones are:
Date of the trial.
Date of the eviction.
That the tenant has 10 working days to oppose the lawsuit for eviction from the day he/she receives it.
That the tenant has 3 days after receiving the lawsuit to ask for legal aid.
The heart of the process: the notifications
If there is one thing to be clear about, it is that as long as the lawsuit for eviction has not been served on the tenant, it is in fact as if the process had not started. In other words, the tenant has 10 days to object (or not) to the lawsuit, which starts to run from the moment the lawsuit is served.
Until now, it has been very common for tenants to circumvent the notification procedure, so that it was not uncommon for proceedings to take 10-12 months because there was no way of notifying the lawsuit to the tenant. But recently the law has allowed the landlord's solicitor to serve the lawsuit (the decree of admission) on the tenant.
And in law firms like ours we apply it from the beginning for a basic reason: the postal and notification services of many courts are collapsed, so if it is our own solicitor who attempts the notification we save a lot of time.
Of course, the fact that our solicitor makes the notification attempt does not mean that the notification will be successful, but it does achieve something fundamental and that is to avoid wasting the 2 or 3 months that it often takes the post office of the court to try to notify the lawsuit. Therefore, if our solicitor is the one who tries to serve the claim, we can literally save months.
Once the notification has been made (by our solicitor or, in case you do not want to take advantage of this, by the court's postal service), then is when the 10 days that the tenant has to oppose the lawsuit start to count. This is when the process is actually unofficially considered to have begun.
However, it is very common that the lawsuit cannot be served on the tenant (because he is not at home, because he does not want to take it, etc.). In these cases, the law states that a domiciliary enquiry must be made, i.e. the court is responsible for finding out the tenant's address associated with his or her ID card. The court checks with the traffic authorities, the social security and the police. If addresses are found, another attempt is made to serve them.
If this is successful (service is successful) then the 10-day period begins for the tenant to object to the lawsuit. If, however, the lawsuit is not served there either, then the lawsuit is posted on the notice board of the court and from that day on, the period of 10 (working) days starts to run.
During those 10 working days, if the tenant opposes the lawsuit, then there will be a trial. And after the trial there will be a judgement, and after the judgement - if everything went well - there will be eviction.
But if during those 10 days the tenant does not oppose the lawsuit, then there will be no trial and the judge will give us the reason directly by means of a decree of archiving, and the next thing will be the eviction, on the scheduled date.
Therefore, the issue of notifications is the heart of the process, that is to say, where the process can be submerged for months or, if everything goes well, where the process can be accelerated.
Free access to justice
Once the lawsuit has been served on the tenant, the tenant can apply for legal aid at any time until the end of the process. However, only if the tenant applies for legal aid within the first 3 (working) days of receiving the lawsuit, can he or she ask for a suspension of the time limits for answering the lawsuit.
In other words, if the tenant asks for legal aid on the first day, then the tenant's 10-day time limit for contesting the lawsuit is suspended. And when a court-appointed lawyer is assigned (it often takes a month or more) then the time limit resumes, leaving the tenant 9 days to oppose the lawsuit.
However, if the tenant applies for legal aid on the fourth day after receiving the lawsuit, then the time limits are not suspended, and since it usually takes 30 days or more to appoint a court-appointed lawyer, the 10-day time limit for opposing the lawsuit will end before the court-appointed lawyer is appointed, so that once the court-appointed lawyer is appointed, the time limit for opposing the lawsuit will have passed and, therefore, nothing can be done to prevent the eviction.
Opposition to the lawsuit
As we have indicated, the tenant has 10 working days to oppose the lawsuit from the moment he receives it. Normally, in 90% of the cases, they oppose the claim with a court-appointed lawyer. Almost never with a private lawyer.
The statement of opposition to the lawsuit must be signed by a lawyer and a solicitor and it must state the reasons why the tenant understands that he does not owe the claimed debt.
Is there a trial?
The law is clear: there will be a trial if the tenant has opposed the lawsuit. If the tenant has not opposed the claim, there is no trial and the landlord is directly awarded the case, and the next step would be the eviction or eviction, on the scheduled date.
If there is a trial, it does not usually last much longer than two or three minutes. They are really fast.
The judgement or the decree of dismissal
If there is a trial (because the tenant opposed the lawsuit) then there will be a judgement. And if there is no trial (because the tenant did not oppose the lawsuit) then there is no judgment, but a dismissal order. But for practical purposes, one is the same as the other.
Thus, both the judgement and the decree of dismissal, if everything has gone well, will condemn the tenant to everything that was requested in the lawsuit, that is to say, the tenant will be condemned to:
Pay the debt (until the day of the eviction).
Be evicted
Pay the costs of the process
The eviction
As I said at the beginning, the execution is a different process to the declarative phase. What happens is that in eviction proceedings you do not have to file a lawsuit, but you go directly from one phase to the other. The eviction is regulated in article 440.3 of the Ley de Enjuiciamiento Civil (LEC).
If after the judgment or decree the tenant does not return the keys voluntarily, then the eviction must be carried out (eviction or eviction). The eviction is the act by which the judge takes possession of the dwelling or premises from the tenant and returns it to the landlord/landlady.
The eviction may or may not be attended by the landlord/landlady, as the procurator will attend in his place. In addition to the procurator, a locksmith and the members of the court in charge of the eviction (usually two members) must be present.
Once the act is over, the court staff will make a written record of what has happened, the state of the house or premises, etc. A copy of this record will be given to the landlord/landlady a few days later.
Collection of the debt
Once the tenant has been ordered to pay the debt, either by a judgement or by an archiving decree, he will have to pay it.
But if he does not pay it, then the landlord will have to file an enforceable lawsuit to try to seize the tenant's assets, bank account balances, salary, etc.
Therefore, contrary to what happens with the eviction (remember that it was not necessary to file an enforceable lawsuit), in order to start the enforcement procedure (seizure) regarding the debt, it does not start automatically, but it is necessary to file an enforceable lawsuit.
How long does an eviction for non-payment of rent last?
In the section "notifications" I have already explained that the duration of an eviction for non-payment of rent can vary a lot, mainly because of the time it takes to notify the lawsuit to the tenant.
But in general terms, and after having managed hundreds of eviction processes, the average duration can be around 6 months, being shorter in cities like Madrid or Barcelona and longer in coastal cities as a general rule.
Law firm with expertise in tenant evictions
We hope this guide has provided you with valuable information about the process of eviction for non-payment of rent. If you have any further questions or need help with an eviction case, please do not hesitate to contact us at our tenant eviction law firm. We will be happy to provide you with advice and support in any situation you may be facing. Thank you very much for reading us!
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