Evictions in Spain have an game change by Ley 37/2011 in order to speed-up the process for removing a tenant from a property - or eviction.
What is Eviction?
Evictions in Spain are the judicial processes by which a landlord may have a tenant removed from their property for breach of the rental contract, usually failure to pay the agreed rent.
The landlord may then use the property either personally or rent it to another tenant.
All that is typically required is to show proof of a the agreed terms of the lease of the property and to show that the rent is not being paid as agreed.
In addition to obtaining the return of the property free of occupation, the landlord is entitled to receive any outstanding monies owed under the rental agreement.
Accelerated evictions in Spain: Express Eviction Process
The process for removing a non-paying tenant from a property has been changed by Ley 37/2011 which attempts to speed-up the process.
While it has certainly improved the legal process, the under-resourced court system still constitutes an impediment to a truly fast system. In any case, the process is as follows:
Notice to Quit
Once the rent has fallen due and is unpaid, the landlord should present a demand to the tenant that the outstanding rent be paid (usually by burofax available in the post office which is proof that it was sent on a particular date).
The reason for doing this is that it allows for the possibility of the tenant leaving the property without having to go through the legal process and the expense involved in hiring a solicitor, court taxes etc. Where the tenant voluntarily leaves the property is probably the best possible outcome in most cases, at least from the point of view of legal costs.
If there is no response from the tenant then the landlord may apply to court for an eviction order. Within that application, the landlord may offer the tenant the possibility of a cancellation of any outstanding rent as long as the tenant leaves the property within a certain period of time (which may not be less than 15 days).
At the same time a date is set by the court for eviction to take place unless there is an action by the tenant, such as payment of all outstanding rent, that would stop the eviction process. The tenant is give a period of 10 days to pay the rent or the eviction will take place.
It is also possible of course that the tenant opposes the eviction on some other grounds, in which case, the matter goes to a full hearing.
Before the court case begins, the eviction proceedings can be stayed by payment of the outstanding rent, assuming that it is the first time that eviction proceedings have been brought against the tenant by the landlord.
Upon obtaining a court order for eviction of a non-paying tenant and payment of the outstanding sums, the landlord may also seek the costs of the proceedings and any sums owed under contractual terms that provide for extra payments if the rent is delayed.
Benefits of the Express Eviction Process
One of the major impediments to a healthy rental market has been the length of time it has taken to remove tenants who have failed to pay the rent agreed under the lease. As a consequence a number of laws have been enacted to improve he efficiency of the eviction process, specifically:
- Law 19/2009 to Stimulate the Rental Market
- Law 37/2011 Measures to Expedite Legal Processes
- Law 4/2013 (Measures to Increase Flexibility and Develop the Rental Market).
The objective of the laws is as follows:
Shortening of Waiting Period for Eviction Proceedings
The two month period between the presentation of the demand for payment to the tenant and the initiation of court proceedings which the landlord previously had to wait was shortened to one month by Law 19/2009. As a result of Law 37/2011 the landlord may proceed immediately upon a failure to pay any rent due. However, as stated above, it is recommended that the landlord speak with the tenant and, if necessary, send a formal notice to quit if payment is not received by the stated date. Should the tenant pay the outstanding amounts in this period then the proceedings can be avoided.
Effective Delivery of the Demand for Payment
Where the landlord notifies the tenant of the demand for payment but the latter does not receive the notification, the landlord may have the demand added to the Official Court Notice such that the tenant is deemed to have received notice without any further action by the landlord.
All eviction procedures can be processed via juicio verbal which is a faster process and is akin to a small claims court in the UK. The fact that the proceedings take place in this way permits a sentence to be delivered within five days.
Faster Execution of the Eviction Order
An affirmative sentence of the court shall be sufficient without more to carry out the order in the date and time decided by the court.
The new measures permit the landlord and tenant to agree to cancel some or all of the debt in exchange for the tenant leaving the property in a time-frame set by the landlord (though it may not be less than 15 days).
Extension of Rules Avoiding Automatic Extension of the Lease for Five Years
The reasons for which a landlord may terminate the lease for reasons of requiring the property for personal use are extended by the new law to include a need by the landlord’s parents, children or spouse in cases of divorce. A clause to this effect must appear in the contract.
If, after three months, the occupation has not transpired, the landlord must return the use of the property to the tenant and pay indemnification for the costs of moving to another property.
Criticisms of Express Eviction Process
Evicting a tenant in spain may take a long time even under the new laws.
Criticism of the ineffectiveness of the new law of Express Eviction has come from a number of different sources.
The problem appears to be that the courts are so backed-up that despite the law permitting an eviction to take place in 60 days, the reality is more like one year in certain areas of Spain given the lack of judicial resources.
Of course these delays have been compounded by the increase in proceedings brought about by the current economic crisis.
So, while the legislation had a good intent, in facilitating faster evictions and thereby facilitating a bigger rental market for prospective tenants, it seems at the moment it is failing in its primary objective due to a lack of resources.
In any case, if you are a landlord who is not receiving rent for a property that is being leased, the best way to proceed is to seek legal advice and initiate proceedings as soon as possible.
In this way you will be able to obtain the return of the property in the shortest period of time and, with luck, the courts in your area of Spain are not too backed-up.