How to Evict a Tenant who is not Paying the Rent

[Minerva]

"I have a tenant with whom my wife signed a lease for an unfurnished two bedroomed apartment just over a year ago. It was an eleven month lease although the tenant expressed a desire for a longer lease and a wish to stay for at least 24 months and so an extra clause was built into the lease permitting an automatic extension on the lease up to 22 months. The possibility of purchase after this time time was discussed but not written up legally.
Although I have had no problems with my tenant, my situation in the interim has changed.
I initially included a clause in the lease to say that there were were "no grievances against the property" which might cause a tenant difficulties and that all payments against the community expenses were paid.
As it turns out I have been unable to pay the community expenses to the amount of approaching 5000 euros. I was actually aware of this when I signed the lease with my tenant but did not see it as a possible interference.
As a result of non-payment of this debt, my tenant has been approached by the Community lawyers (V and V Advisors) , threatened, and had rights to areas of the urbanisation restricted.
My tenant has suggested that our original lease is not legal and she is maintaning that the original rent is no longer binding as the original lease was signed in good faith with certain understandings. She claims the original lease has been rendered void (by myself because of my knowing of ongoing and permanent debts against the property which would (and does) affect the rights of the tenant with the community) and thus, she says, the original lease never was binding since I as the Landlord was aware that the original agreement was invalid since I knowingly signed subsections whilst being aware of them to be of the contrary.
My tenant has offered a lower rent:800 euros due to the disparity between what was initially offered as part of the rental agreement and what is now available.

As far as I am concerned, the problems between the community and I have occurred after
the contact and do not have anything to do with the the present contract with the original for the monthly rent of 900 euros which I am still expecting.

As the owner of the property, I am requesting the continuation of the 900 euros the tenant has paid for the past 12 months since I have my own obligations in the form of mortgage etc. I am attempting to catch up with the community fees although I do realise that there is a considerable disparity between what I have pa¡d and what is actually owed. In the meantime I have been told that access for my tenant will continue to be be restricted.
A.D. King
Please advise
Andrew King c/o headstartlearningcentre@yahoo.com

[Lawbird Lawyer]

Dear Sir or Madam,

Your tenant must continue paying the €900 agreed as per the binding contract signed.

However, you have breached the contract as per the signed clause on signing a Tenancy agreement with them as there are outstanding debts (community fees) against the property which impact on the tenants quality of life.

It is up to your tenant to terminate his tenancy ahead or else you can both reach an appropriate settlement and add it in writing as an annex to the Tenancy agreement. i.e. to offset the tenant being barred of communal facilities out of no fault of his own you agree to lower the monthly rental €200 as compensation.

Yours sincerely,
Raymundo LarraÃ*n Nesbitt

[ricky]

Hi Raymundo we recently rented a property 5 bed with pool 4 bathrooms when we moved in the pool was un clean and 2 out of the 4 bathrooms where not useable our land lady said that these problems would be sorted out as soon as we paid the full deposit. We asked various people for advice the who said to us not to pay the deposit till work was completed which we did still no work carried out so told to withhold the rent mean while the water was turned off as there was 2 outstanding bills owing we suspect the landlord has done this as the meter is still there were do we go from here ?? help please.

[Lawbird Lawyer]

Hi Ricky,

You've been well advised. A tenant should always demand from the landlord that all outstanding issues be repaired prior to them moving in. i.e. green swimming pools, flaked painting, household appliances in disrepair, gardens in poor state etc.

Normally all Tenancy agreements have a standard clause whereby the tenant acknowledges the property is in perfect conditions to be rented and lived in. Once you sign this clause any issues which were not resolved prior to you moving in, despite promises from the landlord, can actually be blamed on yourself to wear and tear unless of course you took the precaution of wording these issues highlighted in the snag onto the Tenancy agreement. i.e. a retention is practices on account of the green swimming pool with the landlord undertaking the obligation to have it repaired.

My advice would be to always make sure to do a snag prior to both moving in and signing the Tenancy agreement. Once you've verified all issues have been solved by the landlord at your entire satisfaction only then sign the rental contract.

Regarding shutting you off the water supply for whatever reason, i.e. landlord not paying it. I copy you in my last unpublished article:



Renting Property in Spain: Common Mistakes to Avoid (Part I) - 12th May 2010 Levante Lifesyle Magazine

Renting Property in Spain: Common Mistakes to Avoid (Part II) - 16th June 2010 Levante Lifesyle Magazine




10 Common Mistakes to Avoid on Renting Property in Spain

Raymundo LarraÃ*n Nesbitt
22nd of April 2010

I thought it would be a good idea to summarise in an article the most common faults that both landlords and tenants make on letting out property in Spain. Some of these slip-ups can cost landlords dearly and may even lead them to being prosecuted criminally in Spain by their tenants.

E.g. http://www.libertaddigital.com/socie...er-1276399890/

Many problems stem from the fact that landlords don’t fully grasp the legal implications of renting a property out in Spain. What renting entails is losing possession of the property which means you can no longer enter the property if it is not with the permission, preferably in writing, of your tenant, regardless if they are up-to-date with the rental or in arrears; that is not an issue. Landlords cannot enter their own property even if it’s just for “inspection” purposes without the said permission.

There are many more misunderstandings and blunders that I could have listed although for simplicities’ sake I’ve decided to leave them out to keep this article reasonably short.

Landlord’s top five mistakes

Many expat landlords are unaware of the different mechanisms in place to secure rental income and often fail to implement them in their rental agreements which can leave them unprotected if the tenant does not, or cannot, pay the rent. These mechanisms are explained in my article.- Landlord: Keys to Successful Rental Income – 31st January 2008.

Most of the blunders made by landlords are related to their tenants becoming non-paying tenants. This can understandably exert great pressure on landlords, especially if they are relying on the rent to offset it against their mortgage repayments, which can easily lead them to take rash decisions that may come back to haunt them later on in life-

1. Shutting off utilities (water & electricity). Landlords often feel the urge of doing this on their tenant missing out on their rental. If you happen to do this your tenant can report you to the police. Doing this may be labelled as either coercion or harassment or both. Your tenant can prosecute you criminally on doing this. So you may want to think twice before doing this. If the utilities are in the name of the landlord and he stops paying them on purpose to mount pressure on the non-paying tenant he can equally be prosecuted as it’s equated to shut-off the utilities physically.

2. Changing the locks. Same as above, it may be regarded as either coercion or harassment or both and you may be prosecuted criminally for this.

3. Evicting non-paying tenants with the assistance of “friends”. Landlords may feel tempted to take justice in their own hands and “break in” the property assisted by some square-jawed tattooed acquaintances from the local pub. This is seldom a bright idea and may land you and your “friends” in a Spanish jail for unlawful entry (trespassing). The only way to evict your tenant is to hire a lawyer and initiate a formal eviction procedure through the law courts. New laws have been enacted to help speed-up the eviction procedure. But on average it is still taking 5-9 months depending on how clogged law courts are.

4. Entering the property to perform a “routine check”. “It’s my property and I will enter it when I please.” I’ve often heard this line from disgruntled landlords who just cannot believe they are forbidden from entering their own property in Spain if it’s not with the prior –written– permission of their tenant. You simply need their permission following Spain’s Urban Tenancy Act regardless if they are paying the rent or not.

5. Eleven month contracts are short-term and watertight. Erm, I’m afraid not. This single blunder is responsible of many legal problems at a later date. What qualifies a rent as either a short or long-term one is not the fact that it’s labelled one way or the other. What matters really is that the tenant and his family are not using the property as their main residence and this must be expressly built and worded into the Tenancy agreement so it’s truly a short-term tenancy. Tenants can successfully challenge at court short-term contracts of 11 months morphing them into long-term ones (5 years). During the next 5 years you will be unable to recover possession of the property whilst the tenant pays being forced to rent it out. The new Express Eviction Law has now amended this and allows landlords to introduce clauses that waive the statutory long-term requirement of 5 years i.e. a clause whereby it is stipulated that the property will be needed for the landlord’s own use or for that of his family. However, if after 3 months’ time the landlord or his family have not taken possession of the property, he will be forced to re-install his ex-tenant and award him a suitable compensation to offset the expenses of the move.

Luxury rentals are excluded from this protection as Spain’s Tenancy Act does not rule them; luxury rentals are ruled by the will of the parties.


Tenant’s top five mistakes

To be fair to landlords tenants also make their fair share of mistakes.-

1. A verbal Tenancy contract is better than a written one. Erm, no. I really don’t know where tenants get this idea from. In Spain verbal contracts are as equally valid as written ones. The problem lies when there are disagreements. It’s very difficult to prove what was actually agreed in a verbal contract i.e. landlord pays for the utilities. It’s in the best interests of both tenant and landlord that rental agreements are always put in writing. Tenants have a right to demand having a verbal contract put in writing by their landlord.

2. I can always offset the 2 months let deposit against my unpaid rental. No you cannot. That two month’s deposit payable at the on start has its own purpose and at no time can be used to make up for any shortfall on the rental.

3. I can always leave the property ahead giving 30 day’s notice. Yes you can but you will be held liable to pay for the remaining months you agreed to rent. i.e. say you signed an 11 month contract and on the third month of the let you give notice that you will be leaving ahead of the expiration of the agreed rental. You may leave ahead but you will owe the let for the remaining 8 months despite you giving notice, it is unrelated. Some landlords will pursue you legally if you fail to pay the balance owed and yet others will turn a blind eye thinking it’s hardly worthwhile the legal hassle. Obviously depending on the sum of money owed it may be more or less worthwhile to pursue you legally. Whatever the case may be, you ought to know that legally you owe the outstanding months and if you decide not to pay them you are taking a legal gamble that may or may not pay off.

4. Deducting damages from the rent. All tenants feel tempted to fall for this one.

Classic examples of this would be:

i) After heavy rainfall I’ve had this terrible damp patch with an aggressive mould growth which has cost me €300 to be removed. Plus my new laptop got damaged as a result (€1,000). I’ll deduct the €1,300 from my let to make up for both.
ii) The washing machine broke down and cost me €150 to repair.
iii) My landlord is not paying the community fees and as a result I’m now being disallowed from using the complex’s facilities i.e. swimming pool. I’ll just pay €300 less a month to offset for this.


Cont'd below

[Lawbird Lawyer]

I could put more real-life examples of the queries I’ve received over the years but I think that’ll do for now. At no time can a tenant decide unilaterally to pay less rent or withhold part of the rent to offset against these unforeseen damages or expenses. First of all some damages have to be paid, under law, by the tenant himself; especially those relating to the normal wear and tear on renting out a property (Art 21 of the Urban Tenancy Act as well as Arts 1563 and 1564 of the Spanish Civil Code). It is seldom a good idea to practice retentions or withhold amounts when you feel it’s appropriate without having the landlord’s agreement. This may even be a cause for legal eviction as you are effectively breaching the signed Tenancy agreement.


5. The property is being repossessed and I’m being asked by the lender to vacate it.

Actually you don’t have to in long-term tenancies. Following Art 13 of Spain’s Tenancy Act it allows tenants to stay in the property until they complete 5 years providing it’s a long-term tenancy. This is true for urban rentals signed after the 1st of January 1995. The bank after repossession takes on the role of landlord. Lenders on repossessing the property must respect by law outstanding tenancy agreements. The tenant must continue paying the rent to the new owner, the bank. Obviously both tenant and bank are free to decide that it may be better to reach an amicable settlement to leave the property ahead of the 5 years. i.e. they can decide on a suitable compensation for all the hassle involved, say 6 month’s tenancy, plus the expenses of the removal. There’s freedom to agree.

In Conclusion

Spain’s Tenancy laws are biased towards tenants for historical reasons that need to be addressed immediately. The Government has taken notice of this pro-tenant bias and are regularly passing new laws, i.e. Express Eviction Law, with the aim of streamlining rental procedures. There is much to be accomplished still if Spain’s rental market is to become as strong and relevant as that of fellow European countries.

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice.

Related articles:

Rent-to-Buy Or How To Profit From Spain's Market Downturn – 5th November 2009

Express Eviction Law Passed by Congress – 30th October 2009

Non-Paying Tenants? No Longer an Issue – 23rd October 2009

Comunidad de Propietarios: Avoid Problems with Your Neighbours in Spain – 26th June 2009

New Express Eviction Law: Much Ado About Nothing -13th July 2009

Paying the Rent Late Twice will be Cause of Eviction – 4th June 2009

Spanish Express Eviction Law Pre-Approved – 24th December 2008

Landlords Afraid of Non-Paying Tenants Take Pre-emptive Measures -16th September 2008

Landlord: Keys to Successful Rental Income – 31st January 2008

How to Evict Non-Paying Tenants – 17th December 2007



Related legal services offered by Lawbird:

Tenant Eviction for Spanish Property
Drafting of Tenancy Agreements


Lawbird Legal Services is a law firm with broad experience in Litigation, Corporate and Spanish Property Law.

Yours faithfully,
Raymundo LarraÃ*n Nesbitt

[Ken]

I am a property owner and about to start a new agreement with an agent for them to rent out my property on short-term (landlord/tenant) lets to tenants that they source. Having previously experienced a [uk] agent go bust on me losing rent and deposits that they held, I requested that this new agreement allow all tenant deposits and ‘last-month’ rent to be held by me rather than the agent. The agent have said that they cannot do this because it is a legal requirement in Spain for deposits to be held by the agent. Is this correct? What if there were no agent the landlord/owner would hold the deposit.

[Lawbird Lawyer]

Dear Sir,

There is no such legal requirement in Spain. Deposits are normally held by the landlord.

Yours faithfully,
Raymundo LarraÃ*n Nesbitt

[Suziegirl]

Dear Sir I do hope you can give me some advice. Almost 3 years ago, I rented my property in Catalonia, out to my 'friends', as they were friends, we did not sign contracts, and I did not ask for a deposit, however now they are 3 months behind with the rent. Could you please advise me my legal position and what steps I should take to get them removed from my property.

Kindest Regards

[Lawbird Lawyer]

Dear Madam,

A verbal Tenancy agreement is just as valid in Spain as a written one from a legal point of view.

It takes on average between 4-9 months to have them removed depending upon just how clogged the law court ruling the case is.

Regardless if the tenancy is short or long-term one, you will need to have them legally evicted. I take for granted your tenancy agreement had no arbitration clause.

In which case you would have to hire a litigation lawyer to initiate a formal eviction procedure. You cannot evict them on your own or else they could file a report against you before the Spanish police which could lead to you being sentenced to prison. You cannot change the locks or shut-off the utilities; you may be reported to the Police as it’s a criminal act. Please read my article above.

I take the opportunity to offer your our legal service on Tenant Eviction for a Spanish Property:

Who is it intended for:

This service is provided to landlords that have a non-paying tenant in their Spanish property (either a dwelling or commercial premises).

What does the service include?

• Analysis of the case and legal advice.
• Preparing and filing your suit.
• Dealing with court proceedings.
• Attending judicial hearings and submitting evidence.
• Claiming unpaid rents before the Spanish Courts.
• What are the steps?

How much does it cost?

i) Non-luxury rental:

• €1,300 plus 16% VAT in legal fees
• Plus a further €600 for the court agent’s fees.

ii) Luxury rental (those that exceed €3,500 a month):

• €1,300 plus 16% VAT in legal fees
• Plus a further €600 for the court agent’s fees.
• 10% on all the recovered amounts (i.e. rental arrears).

We will first try to reach an amicable agreement.

If this fails, we resort to taking legal action. It generally takes less than 9 months on average to have the tenant evicted.

If you are interested in hiring this legal service, please e-mail me. We act nationwide.

As from The 1st of July 2010 professional VAT will be raised from 16 pc to 18 pc.

Yours faithfully,
Raymundo LarraÃ*n Nesbitt

[Bill Johnson]

I am intending to seek, through the courts, the eviction of various tenants from a single residential property I own on the Costa del Sol. The property has been occupied by a family, children and related in-laws. When applying to the court for eviction of everyone, is it compulsory to name each and every individual within the demand or is it sufficient to just name only the principal family member on the Tenancy Agreement in order to have everyone removed.
Thank you for your consideration and anticipated response.