How to Evict a Tenant who is not Paying the Rent

[HELP]

The illegal tenants original contract ceased september this year, it was illegal, as he never paid the rent for 11 months. Despite notices to quit, he has ignored me, the cam bank want my house now, as the rent has not been paid, therefore the mortgage neither for 6 months. What rights have i now, this rotten man is losing me my home in spain, and hoping to take it over, for free. I have a mortgage, but over 120,000€ equity in the villa. I am planning to go over and throw him out. We as landlords need protection, any answers which help me please. thanks
Susan

[Lawbird Lawyer]

Dear Sir/Madam,

If you haven't been servicing your mortgage repayments for the last 6 months your last worry should be your defaulting tenant.

I refer you to this article:

Bank Repossessions in Spain: A Legal Perspective - 25th June 2008

and to this thread:

http://www.marbella-lawyers.com/foru...hread.php?t=73

You should focus on averting a full repossession procedure on your Spanish property clearing the arrears.

Are you aware that on defaulting a Spanish mortgage loan you have unlimited personal liabilty and will be held personally liable with all your assets for any outstanding amount owed to the Spanish lender? They can pursue you abroad these debts.

Yours faithfully,

[C Peters]

Dear Sir/Madam, We moved into a property December last year. It was advertised as a six bed villa with pool, and a parking space. After two months the damp in the downstairs of the property was awful, the landlord and rental agent told me it was my fault because i had not opened windows etc (very rainy in Feb) the damp continued and ruined thousands of pounds worth of goods. We asked the landlord to half the rent as we were paying for a six bed and only using three (upstairs only). We have had no compensation from him. We with held our rent payments to him regarding this, that he needed to sort out the problem, he still has not. My tenancy finishes the end of this month and i need to know my rights, can he just kick me out, as he owes me alot of money, also the property was converted from a three bed to six without planning permission. Does this not mean my contract is void?

[Lawbird Lawyer]

Dear Sir,

Normally a landlord cannot just "kick" you out and your tenant agreement may qualify for a compulsory long-term tenancy (5 years) if worded incorrectly.

However, as you mention that the property is a six-bed villa, we can assume safely it qualifies as a luxury property.

Tenants of luxurious Spanish rentals (vivienda suntuaria) are expressly excluded from the protection of Spain's Tenancy Law (Law 29/1994) as per Article 4. I take for granted, in view of your query, that your let qualifies as a "luxury" rental: the let property must either be larger than 300m2 or else the tenancy must be over 5,5 times the Spain's official minimum wage (which is set at 624€ for 2009).

What the above implies is that there is freedom of both parties on ruling the contract's clauses. So in other words, if you agree with your landlord that 2 days' notice suffices for you to vacate the property, then that's all that is required.

Bottomline, you are not protected by Spain's biased tenancy laws.

Naturally, if you do not pay the rent and remain overtime in the property, the landlord will be forced to formally evict you through the law courts.

Yours faithfully,
Raymundo LarraÃ*n Nesbitt

[teddy]

Thank you for your kind reply however the tenancy agreement is called 'Contrato de arrendamiento de vivienda por temporada'. All the furniture in the property is ours, we pay 1600 Euros per month for the property. As far as we are concerned it is not a luxury property? We were told that we were on an eleventh month contract that automatically goes on from there, we now know this is wrong. It does not have its own drive, no parking space etc. We were lied too when we moved in by the landlord and the agent regarding garage space, damp, pool, etc. So my argument has been that the severe damp in the downstairs which consists of three bedroom, two bathrooms, kitchen and lounge and storage is a loss to us as we can not use anything down there. I have lost clothes and electrical goods that just turned green because for weeks we were first told it was not damp, then we were told it was our fault as we did not open the windows, this damp consisted for months and still does so. I am asthmatic and asked before moving in if the property had damp and was told NO. My neighbours have told me that there has been nothing but problems as the property used to be three bed only with an underbuild ( which the landlord converted without planning into the six bed now known). Many tenants have been caught like me before.
So from my point of view my landlord owes me money for the damage to my goods, knowing full well that the downstairs of the property was severely damp. I am paying for a six bed villa and can only use half of it. I am happy to pay the rent according to the size of the property which is now a three bed.
What are my rights now as i am not renting a luxury property but one that only has planning for a three beds not six? And he is telling us that we must be out by the end of this month or he will change the locks and kick us out.
Thanks

[Lawbird Lawyer]

Dear Sir,

You're welcome.

Then your case is simplier than I thought.

A 1,600€ let is not regarded as luxurious. So ignore what I've written above on luxury accomodation.

As I wrote in my prior reply, it doesn't really matter what the wording of the contract says i.e. seasonal contract or long term contract. It's fairly irrelevant.

What really matters is if you are using the property as a/your permanent home. Most of the tenancy contracts I examine are drafted incorrectly in the sense that they can be challenged successfully at a law court and be regarded as long-term contracts. Spain's Tenacy Act overprotects long-term tenants. So there is a way to circumvent this by means of Seasonal contracts as per section 3. Many lanllords wrongly assume that just because they head a tenancy contract as (por temporada) in big bold black letters then that's what it is. From a legal point of view it mat not be the case and it can be regarded as long-term. So it's pretty irrelevant what the parties label the contract as. There's abundant case law from our High Court on this issue.

If a contract can be argued its a long-term one (it can be proved you live there permanently, it's your place of abode, the dwelling is furbished with your own furniture etc.) then you are entitled to stay legally in the property for a total period of 5 years providing you pay the rent. A new law that has been recently passed amends this slightly and it's no longer as watertight as it used to be:

Express Eviction Law Passed by Congress - 30th October 2009

In any case, if you've read the link I've given you to my article on tenant evictions in Spain, landlords cannot lawfully "throw you out" or change the locks. If they do, you can file what's known as a "denuncia" before a Police Station and the case may be regarded as either coercion or harrassment or both which may imply following a Criminal procedure against the landlord. Changing the locks is regarded as coercion.

You already have examples of such cases in our forum:

We have being denounced by a tenant of having changed the locks. What can we do?
Marie

Please read our sub-forum on Landlord/Tenant legal queries:

Landlord / Tenant Issues
Includes Leases, Evictions, etc.

On the other hand, you cannot withhold part of the tenancy at any time to offset any loss such as those arising for dampness as you yourself are now in breach of contract.

On signing a tenancy contract there's normally a tricky clause whereby you let the property as its is and it is presumed those problems where already there as you are in your right to inspect it rprior to signing the tenancy contract. I would have to examine your tenancy contract to be sure.

Bottomline, you are both at fault, one for withholding unduly the let and the landlord for "kicking you out" changing the locks.

Yours faithfully,
Raymundo LarraÃ*n Nesbitt

[teddy]

Once again my gratitude goes to you for your professional advice.

One thing to add in reply however is when we viewed the property it had just been painted white throughout, all you could smell was wet paint? This once again was brought to my attention by my neighbour who said that the walls were green and he had to paint it?

Furthermore, the damp is rising damp on all external and internal walls downstairs due to there being no damp proof course whatsoever.

Without going on and on and trying to be a good person here am i entitled to deduct the cleaning bills and loss of goods from the rent that is now due? I do have all receipts showing the costs.
thankyou once again.

[Lawbird Lawyer]

Dear Sir,

You're welcome.

Well it should really be the landlord who should pay for all these bills, not yourself, as it's part of the maintenance of the property as per Art 21 of Law 29/1994. If the walls were all painted when you arrived, it's fairly obvious you couldn't know the dampness problem.

CAP�TULO IV.

DE LOS DERECHOS Y OBLIGACIONES DE LAS PARTES.

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.

You must communicate with your landlord and inform him of the dampness problems by means of a registered letter. He is obliged to undertake the repair work and pay it.

The problem is you cannot really withhold legally any amounts on the tenancy. Although on the other hand it is doutbful the landlord would sue you for a small amount. It's really a gamble you are taking on withholding these amounts but I stress it's not legal.

Yours faithfully,

[teddy]

Once again your assistance is grately welcomed and i thank you sincerely. If i do decide to take legal proceedings within the near future i will contact without hesitation.
Kindest Regards to you!

[Lawbird Lawyer]

You'e most welcome Teddy.

Kind regards,
Raymundo LarraÃ*n Nesbitt