In case of non-payment of rent, the first question to resolve is: Can we file an eviction claim in court with a single month of non-payment.
In this regard, article 27.2 a) of the Urban Leasing Law (LAU) is clear; the landlord can in any case cancel the contract due to “non-payment of rent or, where appropriate, of any of the amounts whose payment has been assumed or corresponds to the lessee ”. This is so because payment of rent due is the main obligation of every tenant and, therefore, its non-payment represents an essential breach of the lease regardless of the amount of the debt.
In this case, it would be advisable before going to court to try to reach an amicable agreement with the tenant to pay what they owe by sending several communications (email, letter or burofax and even a lawyer’s letter). It is important to record the tenant’s receipt of all communications.
It is also necessary to take into account the provisions of article 22 of the Civil Procedure Law. In the event that 30 days should elapse after a request for payment without the tenant enacting the debt’s clearance, they will be judicially evicted even if the rent is paid later in court. This is an effective means of pressure.
Finally, there is always the judicial route where the owner can choose between claiming immediate eviction, claiming the overdue and unpaid rent, or claiming both. Although these are two different actions (eviction and income claim), the law allows them to be accumulated in the same claim, which is the most common.
Below we reveal the steps to follow so that the judicial process is successful, allowing recovery of the possession of the property and also the outstanding debt.
In effect, once extrajudicial means have been exhausted and if the tenant refuses to receive formal communications, the owner must file a demand for a “verbal eviction trial”, which will start the process. This claim must be filed through a lawyer and attorney.
What can the tenant do during the process?
Approximately one month after the filing of the claim, the court will admit it for processing. The first notification will itself provide the date of the trial (only if the claim is defended by the tenant) and the date of the eviction (when no defence is offered). In addition, the tenant is given 10 business days to choose one of these three options:
- Leave the property and pay the owner the rent due.
- Cancel the eviction, if you still have that possibility.
- Defend the lawsuit. Only in this case will there be a trial, which will end with a sentence that can be predicted to be favorable to eviction if the tenant cannot prove that the rents have been paid.
If the tenant does not opt for any of these possibilities, the judge will give the reason directly to the landlord by filing the procedure and the eviction will be enacted on the scheduled date.
If the tenant does not return the keys voluntarily, the Kendra process will be enacted whereby a judge authorizes the change of lock and entry into the house. In some conflictive cases, it is possible to request the presence of the police, a locksmith and a court official to draw up a record of the state of the property
How long does an eviction last?
The normal thing is that the whole process takes up to a maximum of 6 months. Everything will depend, however, on whether the tenant can be located from the beginning, whether the eviction is opposed, and whether the process of communication with the tenant is rapid.