How to Evict a Tenant who is not Paying the Rent

[B.J.]

Dear Sir,
I have just, by accident, come across this website and evidently you are more than knowledgeable on the affairs of eviction and tenant/landlord rights. I am wondering if your law firm has any experience in acquisition through adverse possession or UsucapÃ*on by prescription as I believe it is referred to here in Spain.

My case is quite complex and I shall try to keep details to the briefest. Like numerous properties in Andalucia in the ´campo´ regions that are occupied with dubious title, I have occupied the same private property publicly, continuously and conspicuously for almost 25 years since 1985. In1995, my occupancy was legally challenged in court claiming that I was a ´precarista´(unlawful occupier). The plaintiff was unsuccessful in proving their case and I was absolved of all charges and awarded costs in my favour. Since this time I have occupied the same property in the same conspicuous manner with all bills and services being met timely and without question. My neighbours will verify my continued, unbroken, occupation of the property and good character during the whole 25 years.

I understand here in Spain there are various criteria to establish possession via UsucapÃ*on, within appropriate prescribed time limits and under varying circumstances - Spanish Civil Code, Titula XV111 arts. 1940,1941,1957 etc.

My question is, as my occupation has not been successfully challenged for more than 25 years, can I initiate a procedure to acquire possession though UsucapÃ*on or do I have to wait upon a further challenge that may never materialise. If successful, is title awarded or is just continued right of occupation granted.

Do I need the services of a ´specialist´ law firm or is this something your own law practice would consider; and if so, what could be the likely costs involved.

I would be happy to identify myself in due course to your law firm, but for the moment and for obvious delicate reasons, I would prefer to remain anonymous; this I am sure you understand.

B.J.

[fleur]

Hi
I have had major problems with a landlord which are still going on. I rented a house which had never been lived in and was to be rented unfurnished but with a sofa. I turned up with my removal man and they were still putting in lights! No shelves in cupboards, no fixtures in bathrooms etc. etc had a fight on my hands to get this resolved. Sofa had come from the basura so i had to buy one.
I asked for the meter to be read and put on the contract but this was never done. I found out later that this was because the utilities were still on builders rates and the house (one of 3 on a plot) did not have the 1st Occupation Licence.
Had lots of problems - I had to pay for repairs and deduct it from the rent as the 2 owners could not be bothere and told me to get on with it. They never finished fencing between the property that they had promised when the other house became occupied.
The owner or someone given a key by the owner, had been in my house when i wasn't there. The 2 owners had turned up at the house one day and tried to force their way in until they realised i had a guest.
They have turned off the utilites in the past and more recently because they wanted me to leave and have turned up banging on the door demanding rent which had already been paid into the bank.
In February they turned the electric off (I now know they wanted the houses empty as we wouldn't pay made-up bills and they didn't want to pay the builder for it) so they pretended it had been turned off. An electrician friend of mine sorted this out as they had just hidden the fuse - but i had to pay to stay elsewhere for a week and all my food was ruined.
Electric then went off again about 2 weeks later by voluntary request from the builder to Endesa. I had to make emergency arrangements (paid for of course) and lost yet another fridge full of food.
I had changed the locks after i discovered someone had been in the house but when I went back to get some things the locks had been changed to the door and gates. With a lawyers letter I had them changed (210 euro) and removed some of my things but many of me possessions were missing. i went back again (after reporting this to the police) and the locks have once again been changed.
I have had to keep chasing the police as i want to find out what has been done with my things but they are now saying it will go to court as the owner has given another version of events and said all the things in the house where his.
The last remaining things in the house cannot now be removed by me so i am looking at having to make another denuncia for them but i'm getting nowhere.
the rent was last paid in the middle of february and the electric went off shortly after that. the police don't seem to get it that i am not going to now pay rent for a house that does not have electricity and should never have been rented in the first place.
i want my things and have paid out a lot of money through this unfortunate business. What do you recommend i do now?
sorry it's so long-winded but this is a very short version of events!

[Lawbird Lawyer]

Hi BJ

Interesting legal query, we don't get many of those.

I believe you have to wait 30 years to claim ownership of this real estate. Unless you tell me that you purchased it from someone acting in good faith, or it was given or transferred to you by someone who you thought was the rightful owner at the time. You would need both good faith and just title (Art 1940 of the SCC) to take ownership of the property rightfully after 10 years of continued and uninterrupted possession; but you seem to be lacking both elements following what you write.

If you just walked into this derelict property 25 years ago and took material possession of it you will need to complete 30 years before it can be lodged under your name following Common law. So you would still have 5 years to go.

If you've been sued that would interrupt the timeline. However, fortunately for you, as you won the civil case it will not prejudice your continued possession of the property having no effects at all in the time elapsed already (25 years).

Yours sincerely
Raymundo LarraÃ*n Nesbitt

[Lawbird Lawyer]

Dear Fleur

First of all a house without a Licence of First Occupation (LFO, for short) cannot be rented, it is illegal. The whole point of a LFO, as its own name indicates, is a legal check to verify the property is apt for human dwelling.

Another matter is if the competent Authorities choose to disregard existing laws and do not clamp down on such common -albeit illegal-practices.

Stemming from the fact the property has no LFO you get all the typical associated problems: you are on builder's supply (which can be shut off at anytime without giving prior notice and without any legal recourse), lack of fixtures and finishings etc.

I wrote an article on LFO's. Please read it, specifically the drawbacks of living in a property without lacking a LFO.

The Licence of First Occupation Explained - 29th January 2009

Regarding your landlords, they cannot shut off the utility to coerce you as it would be a pursuable Criminal act for which they can be prosecuted. In your case you are on builder's supply therefore there are no utility bills. Please read the following article:

10 Common Mistakes to Avoid on Renting Property in Spain - 22nd April 2010

The above article explains legally how a landlord cannot enter his own rented property which would be regarded as illegal tresspassing (which can be criminally prosecuted on the tenant reporting it to the police). He needs the tenants permission (preferably in writing) to visit his own property.

Yours sincerely
Raymundo LarraÃ*n Nesbitt

[Fleur]

thanks for the response and I appreciate that I was niaive in the beginning but I think the majority of people going to rent a property would never dream of thinking the owner was renting it illegally. The owners are a pair of cowboys - well known for it locally but, of course, people don't tell you things until they've got to know you.
They have clearly broken the law in a number of ways and i now have 2 denuncias against them with the prospect of having to go to court to get any further forward.
As they have now changed the locks again with the rest of my furniture still in the house it looks like I now have to make a 3rd denuncia for the rest of my things. i have receipts for some of the furniture and the lock i recently paid for which they have removed (stolen!) but i would like the police to do something about it rather than produce a few bits of paper on the promise of a court case whenever.
what do i have to do to get the police to do something about this? they were the ones who told me to change the locks to get my things out as i had the right to do so but they haven't backed me up.
has anyone else had a similar problem?

[Lawbird Lawyer]

Hi Fleur

You are welcome.

If Police are seemingly dragging their heels on this matter maybe its time fo you to consider using the leverage of a Spanish lawyer to assist you.

Btw I forgot to add that changing the door's locks is also coercion. It's also explained in my above article.

Sincerely
Raymundo LarraÃ*n Nesbitt

[B.J.]

Hi Raymundo,
Thank you for your rapid response. Reading what you have said, I feel we fulfil the criteria for possession following a 10 year period, despite actually living continuously for 25 years. My main concern, is cost. Are there any guidelines laid down for legal fees for this type of procedure. Also, if acquisition was successful and title changed, would this represent a transfer where the authorities may apply taxes . A sale purchase situation wouldn´t exist but transfer would. Nowadays, everything revolves around costs, so before proceeding further it would be interesting to have an approximation of expenses to see if I can contemplate such an action. If valued, even in this down market, I believe the property could be worth, perhaps in the region of four to five hundred thousand euros.
Thank you for your interest.
B.J.

[Lawbird Lawyer]

Hi BJ

Before speaking of costs lets continue debating on whether is is a viable option or not.

May I ask why is that you think you fulfill the 10 year criteria rather than the 30 years one?

Regards

[B.J.]

Hi Raymundo
To answer your question. I purchased the land on which my house is built on private contract in 1984 in my own name. The parties to the selling side of the contract are today prominent business people of reliable character and the intermediary agent is still in business today. Prior to escritura for the land purchase an off-shore company was established in which I was the beneficial owner. This move was not done to create anonymity for me but was a recommended method of property ownership in the 1980´s.
During the following years I was completely open about my connection with this company, communication with local as well as state authorities, including Tax Authorities, Foreign Investment Authorities, Local Town Hall, Sevillana, etc.etc. as I did then and continue to do today.
A dispute arose between me and my administrators which could not be easily resolved; this resulted in non-communication from the early 1990´s until the present time. During this time of incommunicado my administrators have tried unsuccessfully to have me removed from what I consider, my own property. My wife and I have resided peacefully and continuously for almost 25 years with all bills and expenses arising in Spain being paid on time. Of course, the property remains registered in the name of my company but with only expired POA I have no authority now to transfer title and the chances of obtaining a new power is highly unlikely. By law, the identity of Beneficiaries of off-shore companies cannot be disclosed by administrators, nominees, trustees or the like. Only by Supreme Court order can identities be revealed and only in extremely serious cases. In my case the administrators are still active and still opposed to me and my family´s occupation – hence my query on acquisition by adverse possession (Usucapión). We have signed testament from our neighbours to verify our continuous occupation as decent, respectable members of our community, some neighbours having occupied their homes equally as long as we have, and in one case even longer. Good faith is evident. Just title can be derived from first purchase contract to verifiable evidence of incorporation of my company by the written documents of the acting lawyer.
I hope this provides a deeper insight into my case upon which you can consider.
Regards, B.J.

[Lawbird Lawyer]

Hi BJ

Just so you know, new Money Laundering provisions passed on earlier on this year now force company administrators, amongst others, to disclose who are the real and ultimate beneficiaries of opaque holding company structures i.e. offshore ones.

Your case is different than what I initially thought then. I now believe you would comply with the requirements set forth in Art 1940 of the SCC.

Our legal fees would be that of a litigation procedure. We can discuss further offline or online, at your choice. If it's the former write me an email to my attention:

http://www.lawbird.com/services/contact

Regards
Raymundo LarraÃ*n Nesbitt