How to Evict a Tenant who is not Paying the Rent

[kevin nicklin]

hi raymundo we purchased an apartment in october 2009 and used a local lawyer to do all the work includeing any debt on the apartment and told there was none however we have just found out that the community administrators took 4751 euros out of our bank account the same month we have contacted them time after time and they refuse to talk about it the present administrators told us to ask the lawyer for a certificate of debt but he will not reply to me either by phone or emails how do i make him comply regards kevin

[Lawbird Lawyer]

Dear Kevin,

The last article my law firm has published has a section dealing with this:

Buying Property In Spain Part I. Buying Resale: Avoiding the Pitfalls - 31st January 2010

4. Are There Charges, Encumbrances or Debts Against the Property?

Additionally the above land registry information will describe the property (size, bedrooms, boundaries etc) and reveal if there are any charges or liens against it i.e. a mortgage, a right of way or even an embargo.

However not all debts against a property are lodged at the land registry. This is an angle which your lawyer will cover as well. For example on buying a resale in a Community of Owners in Spain you will be held liable for all the debts of the previous owner in the current year in which you are buying it and also for the previous year, in other words, dating back two years. The new owner will also be held liable for unpaid utility services and local taxes. This is because these debts go against the property itself, not against the previous owner. So whoever owns the property will be held liable.

Other local taxes levied by the Town Hall where the property is located may be left outstanding by the previous owner (i.e. IBI tax and Garbage collection). These may not be lodged either at the property register.

It may be a good idea to hire Title Insurance just to play safe. There are companies offering you 20 years legal protection at very competitive prices. It’s well worth looking into.

On buying a property a lawyer should request from the vendor a Certificate from the Community of Owner's administration signed by the community's president stating there are no debts/community charges against the property.

On Buying a property in a commonhold you will be held liable for all debts against the property for the last 2 years. The fault isn't the vendor's, I'm afraid, it's your lawyers. You should confront him/her on the issue.

I also happen to explain it on my article on Community of Owners in Spain:

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

Owners’ Duties

Section 9 rules them in detail. The main duty will be, of course, to contribute to the maintenance and financial upkeep of the Community of Owners.

Failure to pay the community fees will result in the Community of Owners placing a lien against your property and possibly auctioning it off. This legal procedure in Spain works surprisingly efficiently. You have been warned!

This important article mentions as well the endowment of the communities mandatory reserve fund, in accordance to each owner’s commonhold quota. The purpose of this fund is to create a financial pool for the maintenance and repair of the building i.e. façade’s flaked painting or lift repair work. This reserve fund shall be endowed with an amount not lower than five percent of its last ordinary budget. Its funds will be used as well to pay for the building’s insurance cover.

On buying a resale in a community, the new owner will be held liable for the prior owner’s communities’ debts for the current year of transfer of ownership as well as the natural year immediately precedent (art 9 e). The property itself will be burdened with a lien for unpaid communal debts.

Which is why under law, the signing of the deed of transfer of ownership requires a Communities’ certificate stating that communal fees are up-to-date for that unit, signed by the communities’ administrator. The purchaser can however waive this requirement voluntarily.

Regards,
Raymundo LarraÃ*n Nesbitt

[David]

I have a tenant on a rent to buy option, they have put down a large sum and pay the morgage for the next 2 years then due to compleat, if they defalt they loose everything. We are 6 months into the contract. They asked for 3 months grace on the rent as they say they a struggleing, i declined. They then sent me an email stating it was there intention to leve the property at the end of the month (whitch is when there next rent is due), i confermed my acceptance in way of reply email.

They have no seeked legal advice and there rep has told them thy may as well stay in the house asit can take 2 yrs for me to force them out, meaning i now have to pay €1500 per month while they stay in the property !

Given the written conformation that they were going to leve the property does that nopt mean i can change the locs at the end of february ?

[Lawbird Lawyer]

Dear Sir,

I'm afraid you cannot change the locks, no, despite their e-mail confirming they would leave in advance.

Yours faithfully,
Raymundo LarraÃ*n Nesbitt

[Maria]

I rented a flat in Marbella a few weeks ago. The washing machine was not working and the water keeps pouring down from the toilet. Before I moved in, the owner promised to buy a new washing machine and call a plumber to repair the toilet. It was almost a month ago and nothing happened although I contacted the owner several times about it. What can I do? What will happen if I refuse to pay the rental fees until these problems will be solved?

[Lawbird Lawyer]

Dear MarÃ*a,

There's a nice blog post written by Antonio Flores summarizing what I've been hammering on this thread for years now:

Expat Legal-Gossip Gathering Pace (Part 1) - February-27, 2010,

Quoting an excerpt:

Spanish Rental agreements

1.My tenant is not paying, I will change the locks: FORGET IT, you can end up in the gallows for this because it is trespassing.

2.My tenant is not paying; I will cancel the electricity and water supplies: CAREFUL, doing this is punishable under the Spanish Criminal Code as it is considered to be coercion and/or harassment.

3. My landlord has not made some repairs I have asked him to do so I am deducting the repair costs from the rent. NO, if you do this you can get evicted. Rent has to be paid every month, religiously, and if you want to ask him to carry out remedial work on the property you have to notify him formally. They are 2 separate issues and cannot be mixed up because the law has established this.

4. I have an 11 month contract which I am told is short term and so I will be able to kick the tenant out on expiration of the term: FALSE, all residential rental contracts can be challenged and extended up to 5 years, optional for the tenant and mandatory for the owner. A registration certificate with the local Town Hall will suffice to invoke this.

5. My contract is in German so it is not valid: A very common fallacy. Any document which can be translated by a registered or certified translator or interpreter is valid in a Court of law.

Your case would be number three. At no time can you withhold part or all of the rent so as to offset it against a potential loss or lack of performance of the landlord.

Your landlord is obliged to repair both as it affects the habitation conditions of the dwelling in compliance with art 21 of Spain's Urban Tenancy Act which presumably rules your tenancy if it was done after 1994:

ArtÃ*culo 21. Conservación de la vivienda

1. El arrendador está obligado a realizar, sin derecho a elevar por ello la renta, todas las reparaciones que sean necesarias para conservar la vivienda en las condiciones de habitabilidad para servir al uso convenido, salvo cuando el deterioro de cuya reparación se trate sea imputable al arrendatario, a tenor de lo dispuesto en los artÃ*culos 1.563 y 1.564 del Código Civil.

La obligación de reparación tiene su lÃ*mite en la destrucción de la vivienda por causa no imputable al arrendador. A este efecto, se estará a lo dispuesto en el artÃ*culo 28.

2. Cuando la ejecución de una obra de conservación no pueda razonablemente diferirse hasta la conclusión del arrendamiento, el arrendatario estará obligado a soportarla, aunque le sea muy molesta o durante ella se vea privado de una parte de la vivienda.

Si la obra durase más de veinte dÃ*as, habrá de disminuirse la renta en proporción a la parte de la vivienda de la que el arrendatario se vea privado.

3. El arrendatario deberá poner en conocimiento del arrendador, en el plazo más breve posible, la necesidad de las reparaciones que contempla el apartado 1 de este artÃ*culo, a cuyos solos efectos deberá facilitar al arrendador la verificación directa, por si mismo o por los técnicos que designe, del estado de la vivienda. En todo momento, y previa comunicación al arrendador, podrá realizar las que sean urgentes para evitar un daño inminente o una incomodidad grave, y exigir de inmediato su importe al arrendador.

4. Las pequeñas reparaciones que exija el desgaste por el uso ordinario de la vivienda serán de cargo del arrendatario.

The problem you have is that you moved into the property with these problems ongoing. Normally all Tenancy Agreements have a clause whereby the tenant acknowledges that the dwelling is in perfect condition to live in. Meaning there are no problems. You should have specifically worded into your Tenancy agreement there were outstanding problems which the landlord was obliged to deal with and carry out the remedial work.

Yours sincerely,
Raymundo LarraÃ*n Nesbitt

[Maria]

Thanks for your answer! May I have another question? Yesterday when I got back to the flat, the electricity was turned off and I have found a bill in the post box and according to it the owner hasn't paid for 4months. I rented the flat 1month ago and the rental fee has to be paid till this Friday, but I'm fed up and want to move out. Does this mean that the contract is no longer valid and I can leave without notifying the owner 30days in advance? (And without losing my deposit?) Maybe you should write an article about the rights of tenants... Thanks again!

[Lawbird Lawyer]

Dear MarÃ*a,

I guess you are right. You are not the first one to ask me for such an article, I'll just have to write it!

I think you should advice your landlord you are bound to file a denuncia for coercion against him if the electrical supply has been cut-off because of unpayment. Maybe that will save you all the trouble of actually having to file it and you are promptly refunded by him.

If you want to leave the property you will still have to give 30 day's formal notice (registered letter i.e. burofox) is advisable as evidence.

Your landlord has clearly breached the Tenancy agreement. You should have your 2 month's tenancy deposit refunded, yes.

Regards,
Raymundo LarraÃ*n Nesbitt

[Tim Harrison]

Hi, I have read all the comments on your forum and they make very interesting reading. I realise I have made some mistakes but so has my landlord.
I'm renting an apartment for 750€ a month and during the recent heavy rain storms the ceiling came down flooding half of it and causing damage to both the apartment and our own property. An insurance assessor promptly arrived and agreed the damage was caused by the flood and valued our costs at €2,000, (the ceiling fell on my computer and phone). The assessor went on to explain that his company wouldn't pay our claim as it had happened many times before and so wouldn't be covered. He suggested that we came to a rent agreement with our landlord instead.
I now realise it was a mistake but I only paid €500 rent that month and said the rest would be paid once repairs were made and compensation made for my losses or our losses were taken from any future rent.
He refuses to pay or accept any blame whatsoever, repairs have not taken place and half the flat is unusable. He now insists I leave at the end of the month but if do this I know I will never receive my compensation. What is my best option to resolve this?
Many thanks in advance Tim

[Lawbird Lawyer]

Dear Sir,

As explained in post 76 above, it is the duty of the landlord to carry out all the necessary remedial work on the property to make it fit for human dwelling.

The fact your roof has fallen renders that part of your dwelling uninhabitable.

Your landlord should repair it under the the Urban Tenancy Act (Art 21).

Regarding your desktop and your phone your landlord is not liable to pay for these.

Yours faithfully,