Quite frequently we have consultations with client homeowners who have rented their properties using standard contracts that they have acquired for themselves or through an intermediary. When including the tenants’ details, they often pay little attention to details especially regarding tenant contact details so as to be able to send them important notifications in the future, perhaps about late or non-payment of rent when they are occupying the property.
Usually, the address for notifications is that of the rented property itself, without including other data (e.g. mobile phone, email or alternative addresses in the event that the property is unoccupied). This detail passes most landlords by, but it is extremely important in the event of having to initiate legal proceedings to evict the tenant.
Indeed, when starting the legal eviction process and using the special summary eviction procedure provided for by law, the plaintiff must provide the court with all the necessary contact details so that the court can inform a tenant of the existence of legal proceedings and thus guarantee their right of defence in the process.
In these cases, a plaintiff must provide the court with all the information available so that the case can be communicated to the tenant, since if all means available to the plaintiff to tell the tenant about the lawsuit, the tenant may then appear formally to lodge a plea of inability to defend and, thereby, request the nullity of the proceedings and the sentence to vacate the property.
In many cases we have seen proceedings in which all avenues have not been exhausted so as to communicate the case to the tenant and the final resort is taken too soon to publish the ruling as edicts in the Court’s bulletin board system. This shortcut can lead to problems later on if we do not show the judge that we have deployed all the means at our disposal to communicate to the tenant their indebtedness and the imminent initiation of legal action.
At this point, what is the level of diligence required of a landlord so as to obtain an effective eviction in the event of non-payment of rent? – The Supreme Court’s ruling of 16 February 2021 provides the answer:
Following an eviction and debt claim process in which the defendant remained in debt, the Civil Chamber of the Supreme Court ruled in its judgment STS 81/2021 of 16 February on the matter of whether a judgment approving the defendant’s eviction was achieved through fraudulent means intended to prevent the defendant from being able to appear in the process, or whether the plaintiffs adopted all reasonable conduct conducive to enabling the personal summons of the defendant.
The Supreme Court’s Civil Chamber found that in the second point of law of the recent judgment that “the diligence deployed by the plaintiff was reasonable”. “We have repeatedly stated that the plaintiff must deploy the appropriate diligence in order to acquire the corresponding knowledge, but that diligence is not required to be extraordinary”, notes the First Chamber.
In the present case, the owner had tried to communicate with the tenant “even before starting legal action, at the address that the defendant had given in the contract and which continues to be noted in the present process of the review of the judicial eviction order, without the tenant going to the post office to collect the burofax despite the notice that was left for him”. Moreover, after unsuccessfully trying to summons him at that address and another address recorded in official records, “the tenant’s lawyer even accompanied the judicial commission to try to deliver the communication to the rented property”. With regard to the option of locating the tenant by telephone, the First Chamber of the Supreme Court is not satisfied “that the current defendants (landlords) knew the telephone number of the review applicant (tenant)”, nor that “the tenant’s daughter had the telephone number when the process began, as she had severed their relationship several months earlier”.
In brief, in the High Court’s opinion, it cannot be concluded that the default of the tenant and defendant in the earlier eviction process and rent claim proceedings “was due to wilful or negligent conduct on the part of the plaintiffs, as they took reasonable measures to enable the defendant to be summonsed personally”.
