Evicting a Tenant for non-payment
Surely more than one proprietor of a real estate in our country has faced the unpleasant situation of being affected by the continued delay in the payment of the rents stipulated in the contract or in the worst case suffered from the constant non-payment of them.
When the tenant is late in paying several months or continuously pays amounts that do not correspond with the exposed rents, the proprietor can resolve the lease and solicit in this case the payments owed by the slow tenants.
This can be enormously difficult for those owners who have not thoroughly prepared and drafted their rental contrats wherein should very clearly be stated the conditions of the contract, the duration and the consequences of non-payment of such rents. Especially, if the contracts are carried out for holiday dwellings or undetermined periods of time. In the same way different duties and rights can be applied depending of the type of lease involved: hotelrooms, restaurants, dwellings, business premises, etc.
In case of continuous non-payment by the tenant, he should be shortly and conclusively requested to proceed with the payment of the outstanding lease, granting him an appropriate period of 10 days to catch up on the payments or otherwise, take legal action against him. It is important to assure oneself that the tenant has received the aforesaid request, and for that purpose it is advisable to send it by postal fax or a letter issued by a notary or a telegram. Generally by whatever means that gives evidence of the contents of the request for payment and its correct receipt by the tenant.
If the non-payment persists, the owner will have to face a judicial process that necessarily requires the intervention of a solicitor. In the best cases, the evicted tenant may be directly charged for these costs. Due to the significant delays in the courts in Spain, especially those arisen from unpaid rents of leases, it becomes necessary to verify and to draft rental contracts that explicitly reflect the fundamental circumstances of each party´s duties. Taking one´s time and being careful in the drafting of these documents, the owner may consider himself better protected against possible non-payment of rent.
In the same way, the lawyer can explicitly include in the letter of demand one last chance for the debtor tenant making the real estate in question available to the proprietor on condition that he is forgiven the debt incurred to date. The latter may be useful in cases where the main interest of the owner is to recover the possession of the property as soon as possible, in order to let it again or to sell it to a third party. This option would not be practial for those owners whose interests are not only regain possession of the property but also demanding payment of the outstanding debts.
Enrique Delgado-Schwarzmann Jiménez
Lawyer of Delgado Schwarzmann – Vila Clavero & Asociados
Member of Eurojuris España, international network of law firms
