Lawyer Raymundo Larraín walks us through a tenant eviction procedure.
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Article copyrighted © 2021. Plagiarism will be criminally prosecuted.
By Raymundo Larraín Nesbitt
Director of Larraín Nesbitt Lawyers
8th of July 2021
It doesn’t escape anyone that the ongoing Covid-19 pandemic has had adverse effects on us all. The virus - and its unending family of mutant strains - has wreaked havoc in the world’s economy exacerbating tenant’s financial woes. As a result of the ongoing onslaught, many tenants are finding themselves in dire straits and struggle to continue paying their rental.
However, every story has two sides to it. On the other side, you also have landlords, often with young families, who are also struggling themselves to stay afloat, many have been laid off from work, many have fallen sick, a majority of them rely on the monthly rental to repay the mortgage loan.
The bottom line is that the virus - like death - is a great equalizer and affects us all, both landlords and tenants. As a result of this we have seen a huge jump in client enquiries over the last year demanding our litigation services. In today’s article we are going to briefly gloss over on what a tenant eviction procedure entails in Spain, keeping it simple, cutting out the esoterics.
The non-paying tenant problem
Non-paying tenants have become a real problem for landlords who rent out their Spanish property, a problem which seems to have been aggravated by repeated government-imposed lockdowns that have caused companies to close and have increased unemployment levels, already at a record high.
While the first thought of a distressed landlord is to lock his tenant out, or shut off the utilities, this is considered illegal by the Spanish Authorities and may lead the landlord to face criminal charges for coercion or harassment, or both. A landlord can be remanded into custody on doing this.
If trying to reach an amicable settlement with a tenant fails, the only feasible option left to a landlord is to start an eviction process through a Spanish Court of Justice.
The loss of rental income during this period of time can leave landlords in a bad financial shape, and things may turn uglier if the rental is partly being used to service a mortgage loan: if the monthly payments are not met in time, the lender could even repossess the property. A horror story that many a landlord may be faced with.
What to do?
The first sign of warning is triggered when your tenant falls in arrears one, or more months. With no delay, the first step should be to instruct a Spanish lawyer who will serve legal notice by recorded delivery giving your tenant a reasonable deadline to pay the rental due (two weeks suffices).
Trying to reach an amicable agreement
We are still in the early stages where we are trying to reach an amicable agreement, as starting an eviction process through a Spanish court of justice should only be really used as a last resort. Eviction processes take long, and the tenant can remain (and will probably do so) in the property until the eviction order is issued.
Landlords, therefore, should note that reaching an amicable agreement is in the best of their interest, even though this may involve, in many cases, relinquishing a few months’ rent. Not many landlords are happy with doing this, but it should be noted that the debt is rarely recovered (tenants usually declare themselves bankrupt after an eviction process), and the longer the tenant remains in the property, the bigger the financial loss is going to be and more chances of them trashing your property.
Some unscrupulous tenants even request from the landlord an amount of money in order to vacate the property, which in our opinion is outrageous and tantamount to blackmail.
If reaching an amicable agreement fails, there’s no other option other than to instigate an eviction procedure through the courts.
Can’t I just lock them out or shut-off the utilities and force them out this way?
No. As written previously, your tenant can report you to the police and criminal charges will be filed against you with very serious consequences that may even land you in a Spanish jail.
This is not a recommended option.
The eviction process
If you have failed to reach an amicable settlement, you will have to hire a lawyer and initiate what is known as a ‘juicio de desahucio’, or simply put, an eviction process. The lawyer will have to wait in some cases a few months of unpaid rental before being able to file a lawsuit.
An eviction process requires both a solicitor and the assistance of a procurador (court agent), who acts as a conveyor belt between the lawyer in charge of the matter and the law court. On litigation matters it is compulsory to employ the services of a procurador. A lawyer will typically charge you a minimum of €1,500 in legal fees, plus a further €500 in procurador fees. Other costs involved are a locksmith to change the locks (circa 200 euros).
The lawsuit is filed by your lawyer in a court where your property is located.
The Debt
The priority of a landlord should be foremost to recover possession of the property and vacate the tenant, not to recover the arrears.
A landlord can withhold the compulsory one-month deposit on long term lets, but may additionally ask for other (additional) guarantees on top.
How can I rent out my property safely?
The widespread fear of landlords not being able to vacate swiftly their defaulting tenants is justified. This helps to explain why there is a huge pool of empty properties in Spain which would be let if only the laws were addressed by those who wield power. For the good of the rental market, and a disenfranchised youth, swift tenant eviction laws should be enacted and enforced by our Authorities. This would immediately unclog supply, releasing millions of properties into the open market, bringing down prices. The overprotectionism of (non-paying) tenants by our lawmakers causes tensions on supply as landlords remain fearful to rent driving prices up which further exacerbates and compounds the problem.
The rental sluggishness in Spain can largely be pinned down to landlords being afraid of renting out properties given how biased historically (tenancy) laws are in favour of (non-paying) tenants. This is the crux of the problem – fix it and you are halfway there to pave the way to a robust rental market. But this requires a kind of long-term commitment and backbone our politicians’ lack.
I’ll keep on dreaming.
In the meantime, the onus falls on landlords to avoid non-payment issues. That is why it is most advisable that on renting out property in Spain, landlords should put in motion a series of measures to screen prospective tenants and weed off unsuitable candidates pre-empting non-paying tenants. More on this in our article: Letting in Spain: The Safe Way – 10th of October 2012
Court ruling
Following the hearing, a judge will set a date for the tenant's eviction.
Eviction & lock change
Depending on whether the tenant remains inside, the bailiffs may need to request the support of armed police who will forcefully remove from the property any tenant that still remains inside.
The locksmith, who will have been patiently waiting all this time, will now proceed to change the locks and hand the keys over to the landlord, or his appointed representative.
This puts an end to many a landlord’s nightmare.
How long does an eviction procedure take from start to finish?
In Malaga, it’s taking 3 to 6 months.
See what our clients have to say about our tenant-eviction service:
We have collated our most recent testimonials on our litigation tenant-eviction service:
"Larraín Nesbitt Abogados has been extremely helpful I do not know what I could have done without Raymond and his team. They have been my continued support throughout this process and I have learnt so much from Raymond with the laws and regulation in Spain. Unfortunately, I was challenged with a very awkward, sneaky tenant who was in fact an estate agent, so be aware and do not even trust so called professionals living in your property in Spain. Raymond communications has been nothing but outstanding, he has always been there when I needed him, replies instantly and explain in terms that we can understand with no legal jargon. The tenant eviction was successful and although it was challenging at times it especially with the Covid situation. Raymond and his team have been an immense support. I could not recommend this firm enough, and to not only help with a non-paying tenant but for all other legal requirements even if it's just for information they are knowledgeable and they say it how it is. Thank you Raymond and the team! FA"
FA, England, United Kingdom. April 2021
"I have been faced with a difficult problem to solve concerning eviction of a tenant’s partner for non-payment of rent for over a year. It has been exacerbated by my not being able to visit Spain and have face-to-face meetings, nor to take care of my business for myself. I greatly appreciate the work which you have done for me in this matter, including introduction to a suitable representative to have a Power of Attorney in the matter. While it has been a long drawn out and expensive process, I much appreciate your clear advice and guidance with respect to the law in Spain, and in the successful conclusion of a court case and sentence for eviction which has now been completed. Thank you for your work for me. I look forward to continuing to using your services whenever I need them again."
Kelso Riddell, Scotland, United Kingdom. May 2021
“I’m very happy with Lorrain Nesbitt Lawyers. I’ve worked with a few different lawyers in the south of Spain and Raymundo and his team outshone all with their ability to carve a path through the often obscure and slow mechanics of the legal system. A complex and protracted tenant eviction was resolved in a couple of months once Raymundo took on the case. An outstanding victory. Well done.”
RD, England, United Kingdom. June 2021
Do you have a tenant you need to evict from your property?
According to statistics, landlords take an average of 7 months to start an eviction process. Don’t wait any longer. Act now, call us!
Please note this service is only available in Malaga region (Costa del Sol).
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Article also published at Spanish Property Insight: Tenant eviction in Spain
Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.
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