Non-payment of Rent in Spain

Non-payment of rent in Spain

In recent months the number of inquiries regarding the non-payment of rental income and what can be done about this situation has significantly increased. Although we  recommend solving the problem amicably, obviously this is not always possible.

Firstly it is necessary to analyze in detail the contract to study if it has specific clauses in the event of default by the tenant, such as termination for non-payment of one month's rent. That nonpayment may be due to a temporary problem and not repeated, so it is usual to initiate legal proceedings for eviction when the debt amounts to two months, although Spanish law allows the landlord to sue the tenant when a single monthly payment is due, as we will explain at the end referring to the process of "express eviction".

Having noted the failure to reach a concrete solution through verbal communication, the next step is claiming the debt in writing in a formal way. This prior claim to the possible lawsuit is extremely important: firstly, shows the judge in the case to reach trial that the owner has exhausted all avenues in good faith at his disposal to solve the problem. On the other hand, prevents the tenant rebutting the eviction action by entry of the amounts due.

Let's explain the latter. The tenant, before a lawsuit claiming rental income, has the opportunity to rebut (rescind) it simply paying the amounts that you are claiming. You, as a tenant, can only make use of this right once, so if a second default situation should occur after having exercised this right, you could not regularize back your situation, but the lawsuit would come in.

Secondly, the tenant can not exercise this right (which in legal terms is called “enervation”) if the landlord has required him in a reliable way to pay the due rent with a minimum of 30 days before the filing of the eviction, and the tenant has not paid the debt in the day of its interposing. In addition, with this previous claim to the tenant, the chances that the latter will be sentenced to pay the costs of the entire judicial procedure remarkably increase, since it proves the lessee is not acting in good faith.

All these reasons show the convenience of that prior claim, but always meeting the requirements defined by the courts to prevent enervation by the tenant: not just any writing, and at this point we must stress the importance of looking for a professional to advise us properly.

Finally, after recent reforms in 2011 and 2013 in Spanish legislation on urban leases, we will briefly describe the procedure colloquially referred to as "express eviction". You can commence it if the tenant fails to pay only one month's rent. Following the filing of the complaint, the tenant has 10 days to rebut (paying the rent due and continue in housing, with the exceptions explained above). If within that period of 10 days the defaulting tenant opposes. trial date would be set. If, however, within those 10 days the tenant does not answer or leave the house voluntarily, he or she will be sentenced to pay the rent due and costs incurred, once requested by the homeowner.

Javier Faet

Lawyer