How to Evict a Tenant who is not Paying the Rent

Raymundo Larrain Nesbitt - Lawbird Legal Services
17th of December 2007

Non-paying tenants have become a real problem for landlords who rent out their Spanish property, a problem which seems to have been aggravated after August’s credit crunch. While the first thought of a distressed landlord is to lock the tenant out, or shut off the utilities, this is considered illegal by the Spanish Authorities and may lead the landlord to face criminal charges plus the payment of compensation to the tenant. If trying to reach an amicable agreement with the tenant fails, the only feasible option left to a landlord is to start an eviction process through a Spanish Court of Justice. Although the Spanish authorities have promised to enact a new ruling next year which will reduce the eviction time to only two months, currently an eviction of a non paying tenant takes anything between 10 to 18 months (typically one year).

The loss of rental income during this period of time can leave the landlord in bad financial shape, and things may turn uglier if the rental is partly being used to pay off a mortgage: if the monthly payments are not met, the bank could repossess the property. A horror story that many a landlord can be faced with.

What to do

The first signs of warning should be triggered once you’ve verified your tenant is two or three weeks late in the rental payment. With no delay, the first step will be to send the tenant a registered letter (“burofax”) giving him a reasonable deadline to pay the rental due (two weeks suffices). A lawyer should be able to arrange this for you for a reasonable fee.

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.

Some unscrupulous tenants even request from the landlord an amount of money in order to vacate the property, which is in our opinion outrageous and should never be agreed upon.

If trying to reach an amicable agreement fails, there’s no other option but to initiate an eviction process.

Can’t I just lock them out or cut-off the utilities and force them out this way ?

The problem in cutting off the utilities, or changing the locks to the property is that the landlord may be subject of having a criminal proceeding being filed against him.

Changing the locks without the tenant’s permission can be considered either coercion (delito de coacciones) or unlawful entry (delito de allanamiento de morada), or both. These acts are punishable under the Spanish Penal Code. There is ample Jurisprudence on the matter, and as an example we can cite the Supreme Court ruling of the 28th February 2000 (rec 4642/1998).

If the landlord decides to cut off the utility supply, either directly or indirectly (not paying the invoices), he may also be prosecuted for this act, as it is equally regarded as coercion

In addition to this, the landlord will be breaching the rental contract and this weakens his legal position before a court on claiming eviction.
In any case, the debtor before the utility companies is the owner of the property, never the tenant. Any unpaid utility invoices will go against the property. The landlord will have to pay for all the expenses associated to reconnecting his property to the utility services as well as paying the invoices and any delay interests. For all the reasons outlined, this is not a recommended option.

The eviction process

If you have failed to reach an amicable settlement, you will then 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 4 months of unpaid rental before being able to file a lawsuit. An eviction process is actually quite slow and takes anything from 10 to 18 months (typically one year) until the tenant is effectively vacated from the property by the law enforcement agents.

An eviction process requires a solicitor and the assistance of a procurador, who acts as a conveyor belt between the lawyer in charge of the matter and the law court, does not belong to any law firm and under Spanish law it is compulsory to employ his services on litigation. A lawyer will typically charge you around 1,500 € in legal fees, plus an extra charge of 700 € in Procurador fees. Other costs may involve those of a locksmith.

The law suit is filed by your lawyer in a court where the property is located.

The Debt

The priority for the landlord should be in many cases to recover the possession of the property and vacate the tenant, not to recover the lost rental income prior or simultaneous to the possession. The reason being is that the tenant may use to their advantage several legal mechanisms to delay such payment. These delay tactics allow the tenant to stay even longer in the property at the landlord’s expense. For this reason, the lawyer’s priority should be first to vacate the tenant, and only then to recover the lost rental. These are two separate and distinct legal actions from a procedural point of view.

The landlord can withhold the compulsory one month deposit, normally kept by the real estate agency until the end of the tenancy contract, to make up for the unpaid rental.

Strategies of the Tenant to Delay the Process

On letting properties in Spain, the landlord should be made aware of the numerous professional debtors there are which are very knowledgeable on Spanish Rental Law. These professional deadbeats profit on the biased Spanish laws which are devised to protect tenants, not landlords. They are very common on the coastal areas.

Tenants may choose to refuse to acknowledge all communications sent from the law court compelling them to pay the rental and interests due on the amounts owed. They can actually stall a process by alleging they were not notified in due form.

They can also carry out what is known as “enervación” by which the landlord has to forcefully grant them an opportunity to pay up before the judgment. Even if the landlord refuses payment they can deposit the amount owed at the court and the landlord is forced to continue the rental agreement. This forfeits the legal action taken. However, the tenant can resort to the “enervación” only once. Should they fail to pay a second time this will lead ultimately to an eviction.

The law court will issue an eviction order (lanzamiento) after the positive ruling from the judge sentence. The police will arrive at the property to force the tenant physically to vacate it along with all his personal belongings. You will then recover the possession of the property from that day and will be free to rent it out again.

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 the laws were addressed efficiently.

On our next article, Landlord: Keys to Successful Rental Income, we deliver useful tips on how a property can be rented out safely securing your rental income.

What the future holds

There is a vast pool of properties in Spain which are not let due to landlord’s fear of unpaid rental, and the slowness of our eviction process. The good news is that the Government, having realized the importance of lets in our society as an effective alternative to purchasing property, has decided to take action. Plans to pass a new bill on eviction procedures sometime next year was announced on September 28th. This will prove most beneficial, as will speed up significantly the eviction process.

Also, as from 2008, ten new Juzgados de Primera Instancia (First Ruling Courts of Justice) will be created which will handle only eviction procedures. One of these will be located in the Málaga province and will cover all the Costa del Sol.

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! Lawbird Legal Services has made available to you the “Tenant Eviction” service. Please contact info07@lawbird.com if you need information about this service.

Discuss this Article

• julieanjamie@hotmail.com Says:

  Wed, Dec 17th 2008, 12:48

  My partner and i are in arrears with our rental payments by one month we have tried ou best to keep up repayments but i lost my job due to the fact there are no tourists and my partner the main earner had a motorbike accident coming home from work, that was the result of a taxi driver, the insurance for his accident is going through, however, the letting agency has told us they want us out of the property by the end of the week and is threatening balif action please cld you let us know where we stand legally. My partner will return to his position when healed properly he is getting a half of his normal wage and we have offered the letting agency as much as we can afford but they are saying it is not enough.

• Lawbird Lawyer Says:

  Thu, Dec 18th 2008, 13:01

  Dear Madam, Was your contract long term or short term? How long have you been letting this property for? Is this property regarded as your primary dwelling or else as a summer or short term lease? I would really need you to scan and email me a copy of your Tenancy agreement before I'm able to reply properly. Please do so. http://www.marbella-lawyers.com/questions/askALawyer Fill the above online form and email it to us and we'll take it on from there.

• Tim Whiteley Says:

  Fri, Dec 19th 2008, 15:20

  I am a rental management agent who has been in Spain for 7 years. I am now dealing with my first ever problem of a client who has a 11 month agreement and require 3 month free rent plus electric due to minor damp in 1 bedroom and an openfire which cannot be used. Can you please contact me on villasolutions@hotmail.com or 696522171 thanks Tim

• AJ Fitzpatrick Says:

  Sat, Dec 27th 2008, 21:12

  I have tenants in Cadiz who stopped paying rent since September 2008, start lease date was June 2008. They have refused to pay any more rent, their lease was for 6 months only which expired December 17th 2008. They still remain in the apartment and are not paying any rents nor community fees. They have been served a legal letter to vacate property and pay all monies due and still they remain. Since their lease contract is up what can I do to remove the tenants from hell? Can I move in to the apartment myself and live there legally as their lease agreement has expired? Or what would you recommend? Regards, AJ.

• Lawbird Lawyer Says:

  Tue, Dec 30th 2008, 10:49

  Dear Sir, As per my article herein above I advise you initiate an eviction procedure as soon as possible. You will have to appoint a lawyer to act on your behalf. A new eviction law has been pre-approved which will greatly speed up the eviction process to the relief of everyone, execept the non-paying tenant of course. You can most certainly not move in to your partment whilst the tenant is still there, regardless if they are paying or not, or else face the risk of being reported to the police. You cannot shut off the utilities either. Please read our article which explains the steps you must take. I take the opportunity to offer you our legal services: Tenant Eviction for a Spanish Property. Please contact us if you are interested in this legal service. Regards, Raymundo Larraín Nesbitt

• gabriella Says:

  Thu, Mar 12th 2009, 11:16

  we have tenant in our apartment at la apaercida which have not paid any rent or electric or water since moving in in december, do you have a lawer in our area which can help we are costa blanca as we have a mortage on the peoperty which we are now finding hard to met due to not getting the rent please can you help. when we went to see the tenant they were very threatning

• Lawbird Lawyer Says:

  Fri, Mar 13th 2009, 10:54

  Dear Gabriella, Our law firm acts nationwide, Costa Blanca included. We will be delighted to offer you our Non-Paying Tenant Eviction Service. Please contact us for more details or to discuss this matter further.

• Mrs Felton Says:

  Wed, Mar 18th 2009, 10:28

  I gave my keys to a friend before leaving Spain who has since rented out our property, she signed the contract not me as far as i know the tenants are still in the property and the bank want to reposses the house, there has been no rent paid and i am unsure whether there is prople in my house, where do i stand legally as i did not sign anything to sya they could stay there, knowing her mistake ( so called friend) she will not answer my calls or emails. How do i get these people out if they are in our house?

• Lawbird Lawyer Says:

  Fri, Mar 20th 2009, 10:38

  Dear Madam, We would have to study your case in more detail. In any case to give you a brief overview, you could follow a: 1.- Standard civil eviction procedure against your "tenants" (precarios). You must understand your tenants let in good faith with a tenancy agreement and they were handed the keys to the property. 2.- A Criminal procedure against your friend for both emblezzement and unlawful appropiation depending on what amount of money she's withheld. Regarding option one it is taking on average between 6-12 months depending on where your property is located in Spain. We can represent you both on the Civil and Criminal procedure. Contact us if your interested in hiring us. Yours faithfully,

• kevin Says:

  Thu, Mar 26th 2009, 19:37

  I rented a house in spain on a 11 month contract. I was not given an contract or inventory to sign. I now have had a hard time due to job hours and am 10 days behind. I did say I would move. The letting agency is saying we must pay now as well as the utilities as per our rental contract, but untilites were included in the rent as per the ad we rented from. Also saying they want to check the items in the house as per the inventory. I never signed a inventory or rental contract- I dont want them to say something is broken when we know it was never in the house. Your advice please

• Pete Says:

  Thu, Mar 26th 2009, 19:54

  This is a bit humiliating. I work for a letting company and we rented a house but did not get the rental contract/inventory back from the tenant. This is a shortterm lease under 12 months. The tenant is not behind and utilities are owed. Is there a way to get the tenant to now sign and if not what can we do?

• Lawbird Lawyer Says:

  Fri, Mar 27th 2009, 11:46

  Dear Pete, Not to worry, we are all entitled to our fare share of mistakes in life, after all, that's what makes us human. Back on topic, just tell him that under Decree 218 you need this to be signed again because the Junta de Andalucía is requesting it and he will be held liable. Besides he must sign it it's part of the tenancy agreement as an annex. If the property is outside Andalucía then you can use the equivalent law.

• Lawbird Lawyer Says:

  Fri, Mar 27th 2009, 11:56

  Dear Kevin, You must sign the inventory, it's part of the contract. Besides for some oddball reason tenants indulge themselves on thinking they are somehow more protected in law without signing a Tenancy agreement when in fact, it's just the opposite. A landlord cannot have you removed from his property because you've signed a Tenancy agreement, even on you falling behind in the let (or not paying at all). If he dares, he can be reported to the Spanish Police. Many landlords are now facing prison sentences for having shut-off the utilities or changing the locks having a non-paying tenant dwelling on the property. Please read the article that started this eviction thread. The Landlord will have to follow a formal Eviction Procedure to have you removed which takes on average many months (6-9 months). The Government keeps talking on passing new laws to speed up the eviction procedure.

• kevin Says:

  Fri, Mar 27th 2009, 12:21

  Thank you for responding to me earlier. I have today asked to sign an agreement and was told I would not be given one and must pay or move. Is there anything I can do?

• johnT Says:

  Fri, Mar 27th 2009, 12:49

  Hi, I am thinking of renting my house. I am debating whether or not to have tenants sign a contract/inventory as the house will be furnished. I have been told it is best to go month to month by some and that I would be ridiculus not to get a contract signed by a tenant. Which would you suggest?

• Meli Says:

  Sat, Mar 28th 2009, 17:31

  Hi, I am 10 days behind on my rent and the agent also forgot to give me a contract. When I rented the house the advert said that utilities were included in the rent. I have since received notice from the agent that my contract (which was never signed by me) states that only 80 euros per month is alloted for utilities all else I must pay. I have the advert which states that they are included. I have also been informed that the owners are filing a denucia against me for these utilities and rent. What does this all mean and can you help?

• Lawbird Lawyer Says:

  Mon, Mar 30th 2009, 10:02

  Dear JohnT, I would always suggest you have written Tenancy Agreements. The only reason not to have it in writing is when people are thinking of commiting tax fraud. If I were a landlord and renting a fully firnished property I would not let my tenant move in prior to him signing a detailed inventory of all furniture.

• Lawbird Lawyer Says:

  Mon, Mar 30th 2009, 10:06

  Dear Meli, It's not a matter of the letting agent forgetting, it's a matter of you not moving in until you have a signed Tenancy agreement. A landlord can have you evicted not only because you are not paying the let but also in case you are paying it late. There's been new rulings in this sense. The landlord has probably initiated an eviction procedure against you. Please read the article that started off this thread. How to Evict a Tenant who is not Paying the Rent - 17th December 2007

• Emma Says:

  Mon, Mar 30th 2009, 14:35

  I saw the query before and had a question about similiar. I have just moved out of a flat where it was rented with all utilities included also. Before I moved the landlord filed a Denuncia for unpaid utilities, I was told that this will damage my creditworthiness. I was also not given a contract. Is this true and what can be done?

• Lawbird Lawyer Says:

  Tue, Mar 31st 2009, 10:46

  Dear Emma, If there's no written agreeement perhaps the Landlord is not declaring his rental income which is a tax offence... It is normal that the tenant pays for the utilities which he himself is using. In any case that is normally worded into the tenancy agreement. But you don't have one. Have you seen a copy of the denuncia filed by the landlord? Ask him for a copy, let's see if he's filed it or if he's just bluffing to push you into paying them.

• beth Says:

  Wed, Apr 8th 2009, 14:18

  My husband and i are late paying our rent. We did not pay at the beginning of March or April. Our landlady is threatening leagal action. We will have the situation rectified within 6 weeks. We have a 5 year contract and have been living in the apartment for 18 months. Please advise what legal action the landlady can take. Do you think we will be evicted and if we pay up in full within 6 weeks of now do you think it will be ok? Thanks

• Lawbird Lawyer Says:

  Fri, Apr 17th 2009, 18:39

  The landlord can hire a lawyer an initiate a formal eviction procedure against you. This takes on average 8-12 months.

• anonymous Says:

  Fri, Apr 24th 2009, 00:00

  My tennant is not paying rent in my furnished apartment I am concerned he will take them and leave, can i remove the furnishings and put them into storage before he has the chance.

• Lawbird Lawyer Says:

  Tue, Apr 28th 2009, 10:03

  I'm afraid you cannot. You cannot enter the property without the express prior permission of your tenant. If you do so, it may be regarded as trespassing and you can be reported to the Police by your tenant.

• kevin nicklin Says:

  Tue, Apr 28th 2009, 13:42

  hi we have a couple of moroccon tenants in our spanish apartment who have not paid rent for 2 months and are refusing to move out im told we can not turn the services off but can we take all our furniture out

• Lawbird Lawyer Says:

  Tue, Apr 28th 2009, 14:17

  Dear Sir, You canot even enter the property without their express written permission, much less remove any furniture. You risk being reported to the Police for trespassing. Please read this thread: http://www.marbella-lawyers.com/forums/showthread.php?t=207

• kevin nicklin Says:

  Tue, Apr 28th 2009, 18:46

  ive just had a reply from a lawer in spain about evicting 2 tenants that have not paid rent for 2 months and have been told that the cost will be 1400 euros of which i can not afford at present can i claim it back from tenants or against the letting agent who is supposed to be looking after my interests but seems to be on the side of the tenants even though i did not sign the tenancy agreement he did

• kevin nicklin Says:

  Wed, Apr 29th 2009, 13:51

  hi ive read your article on changing the locks but does it work in reverse my agent has told me the tenants are going to change the locks is this a criminal offence

• Lawbird Lawyer Says:

  Wed, Apr 29th 2009, 17:05

  Dear Sir, You would have to pau your lawyer up front for these expenses. Frankly I doubt you will recover it from your tenants. You cannot claim it back from your estate agents.

• kevin nicklin Says:

  Thu, Apr 30th 2009, 18:51

  having tenants you want to evict for non payment of rent is it also illegal for someone to enter apartment when tenants are out remove their belongings and change the lock and also if illegal what are the penalties

• Lawbird Lawyer Says:

  Mon, May 4th 2009, 13:48

  Dear Sir, You face being sentenced to jail for trespassing. On you letting a property you lose the possession of it, which is exactly the whole point of a letting contract.

• susan Says:

  Fri, May 8th 2009, 12:18

  The tenant who had a 3 year contract has not paid rent for over 6 months. Cam bank are now taking the villa, but the tenant stilll won't pay, his original contract ends in Sept 09, he also claims he has spent 6,000€ on repairs, but no receipts, also i could have claimed on the insurance, but he did not advise me of the so called problems. He did repairs without my agreement, as i did not know about it. He also says he won't allow me onto my property, but is happy to let me lose the villa? He never replies to my emails. What do i do please. I have no spare money live in UK, and do not know what to do. My villa is worth 240,000€ with a mortgage of 157,000€ What do i do? Thanks Susan

• Lawbird Lawyer Says:

  Wed, May 13th 2009, 16:30

  Dear Madam, As explained in a prior email the least of your concerns was the unpaying tenant. Your lender will now repossess your property. But the tenant will actually stay there until he is formally evicted for unpayment. But that will probably be after the repossession procedure is over.

• anonymous Says:

  Tue, May 19th 2009, 18:52

  can you ask a tenant to pay outstanding utility bills and damage to the property after they have already vacated the property one month previously? (particularly if the matter was not discussed prior to the tenant leaving the premises and the deposit was already settled)

• Lawbird Lawyer Says:

  Fri, May 22nd 2009, 10:07

  You can ask, another matter is if they will pay you. If you refunded the one month deposit it is well understood that everything was ok for you otherwise you would have practiced a retention either for the outstanding utility bills or for the damges inflicted to the property or for both. Your case is weak.

• anonymous Says:

  Sat, May 23rd 2009, 16:24

  on the subject of outstanding utility bills and deposits - if an agent (working with the tenant on behalf of the landlord) allowed the tenant to use the deposit as the last month rental payment - and didn't advise of any outstanding bills at the point that the tenants vacated the property, but later contacted them to request the payment of such bills - what legal action can be taken against the tenant for not paying these bills? (in this instance, the bills were in the landlord's name and have already been paid in full). the tenant has been notified of these costs but sadly weeks after they had vacated the property. is there any way of legally chasing for these costs if they are refusing to return my calls or is it a lost cause?

• Lawbird Lawyer Says:

  Mon, May 25th 2009, 12:10

  Dear Sir/Madam, As per the reply above, it is hardly worthwhile pursuing the matter unless the amounts involved are thousands of euros.

• Nickademos Says:

  Tue, May 26th 2009, 20:02

  Hi, can you tell me were I stand. My Agents let out my apartment for a week to prospective client of their's with out our permission or our signatures on the contract. they did not pay any security, also the said tenant did not take a copy of this contract, and has a reciept for one weeks rent. Is the tennant therefore tresspassing on our property as they have no agreement with us to be there. The said contract also stipulates that they are responsible to pay all utilities, therefore if I did disconnect them how is that cosidered coercion?

• Lawbird Lawyer Says:

  Wed, May 27th 2009, 12:20

  Dear Sir, How can an agent let your property without your permission? How does he have access to the property? He has a copy of your spare set of keys. Is he selling your property and he has let it unbeknownst to you? Or does he regularly let it for short lets acting on your behalf?

• kevin nicklin Says:

  Fri, May 29th 2009, 21:53

  can i denounce someone in spain in a uk police station or do i have to go to spain to do it and if i can how long would it take

• catherine Says:

  Mon, Jun 1st 2009, 11:47

  I am renting a property through an agent and have never fallen behind on the rent. The agent rang last week and said that the bank are going to repossess the house because the owner has not paid the mortgage and needs to remove the owners belongings stored in the garage.(which I allowed).The agent told me not to worry because i have a 10 month contract the bank will have to honor it is this true ,I am worried the bank will come and take my possessions because the owner isn't paying the mortgage.

• Lawbird Lawyer Says:

  Mon, Jun 1st 2009, 12:40

  Dear Sir, I would advise you do it in Spain. Normally no less than 2 hours.

• iraj Says:

  Thu, Jul 2nd 2009, 17:49

  we have a tennant she dont pay the rent for last 6 months, she damaged the property, and house is in a very bad condition in and out what the best to do ? although we have issed section 8 to her but she not boder at all, please email me on iraj20@hotmail.co.uk thank for any advise. fom uk

• Lawbird Lawyer Says:

  Mon, Jul 6th 2009, 14:17

  Dear Sir/Madam, Further to your post, I have no idea what section 8 is you are refering to. I strongly suggest you read the article on the eviction procedure which must be followed in Spain and started off this thread (post 1). Regardless if the tenancy is short or long term, you will need to have them evicted. I take for granted your tenancy agreeement had no arbitration clause. In which case you would have to hire a litigation lawyer to initiate the formal eviction procedure. We can offer you our Tenant Eviction for a Spanish Property: Who is it intended for: This service is provided to landlords that have a non-paying tenant in their Spanish property (either a dwelling or commercial premises). What does the service include? Analysis of the case and legal advice. Preparing and filing your suit. Dealing with court proceedings. Attending judicial hearings and submitting evidence. Claiming unpaid rents before the Spanish Courts. What are the steps ? We will first try to reach an amicable agreement. If this fails, we resort to taking legal action. It generally takes a year or less to have the tenant evicted. If you are interested please contact us.

• Caroline Jaramillo Says:

  Tue, Sep 15th 2009, 18:46

  I have signed the contract for an student property. It was a nine month contract signed separately, but I signed two of them and paid the deposit trusting in find my other housemate. Five hours later I had realized that I was not able to live in that country for a family reasons and I informed the landlord trying to cancel the contract and agree a reasonable payment, like the deposit of the two rooms that he already charged but he refused to do so and told me that if I signed the contract I have to pay the rent even if I am not living there. Or that I can find a replace tenant and after try to do so, they were going to see if they can do something for me. It Is is it possible to give them an early notification and ask again to cancel the contract or what are the risk I am facing if I dont find a replace tenant before my moving date?

• Lawbird Lawyer Says:

  Wed, Sep 16th 2009, 09:52

  Dear Ms Jaramillo, When you sign a Tenancy agreement you are immediately binded by it. Meaning that if you decide, for whatever raeson, to leave the property ahead of the contract's agreed expiration date you may do so giving enough notice (usually one month) to your Landlord. However you will be held liable for the pending months you agreed to pay until the expiration of the let. Some landlords pursue the outstanding months and some don't, so it's a gamble you take. All will withhold the security deposit which will be not be refunded, in your particular case the 2 months. Yours faithfully, Raymundo Larraín Nesbitt

• kevin nicklin Says:

  Fri, Sep 18th 2009, 11:54

  in 2007 we brought an apartment and was told by our lawyer that it was debt free we then found out there was a 4,600 euros owing on community charges which was taken out of our bank account can we claim this back from the lawyer

• Lawbird Lawyer Says:

  Fri, Sep 18th 2009, 12:32

  Dear Mr Nicklin, Contact the Law Society -in Spanish- of which he is a member of and lodge a complaint. They will guide you on the procedure to follow.

• Graham Says:

  Thu, Oct 1st 2009, 16:12

  How much notice do I need to give to inspect my spanish property, which currently has tenants?

• Lawbird Lawyer Says:

  Fri, Oct 2nd 2009, 10:07

  Dear Sir, On you letting a property you lose possession of it. You have no right to visit or inspect your own property unless your tenancy is one of those that belong to art 4.2 of Spain's Tenancy Act (luxury rentals) in which case both parties have freedom to agree on this and basically any other point as they are not constrained by this law. If your let is a normal one, post 1st of January 1995, subject to Law 29/94 then the only occassion you would have a right to inspect the property would be as per art 21 on verifying that repair works of some flaw have been carried out correctly. Bottom line, on letting you lose the possession of the property. Another matter is if your tenant allows you to visit the property, that's up to him but he's not obliged to legally. This permission is highly recommended to always be in writing (i.e. an e-mail suffices) to avoid false accusations. If you enter your own property whilst there is a tenant inside you would be committing illegal tresspasing even on you being the landlord. Needless to say this is a pursuable Criminal offence in Spain and you can be reported to the Police. As I always conclude on tenancies, Tenancy Laws in Spain are heavily biased towards tenants for historical reasons that need to be addressed and adapted to social reality. Yours faithfully, Raymundo Larraín Nesbitt

• HELP Says:

  Mon, Oct 5th 2009, 23:38

  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 Says:

  Tue, Oct 6th 2009, 08:57

  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/forums/showthread.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 Says:

  Thu, Nov 19th 2009, 13:05

  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 Says:

  Thu, Nov 19th 2009, 13:59

  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 Larraín Nesbitt

• teddy Says:

  Thu, Nov 19th 2009, 14:25

  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 Says:

  Thu, Nov 19th 2009, 15:48

  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 Larraín Nesbitt

• teddy Says:

  Thu, Nov 19th 2009, 18:09

  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 Says:

  Fri, Nov 20th 2009, 09:31

  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. CAPÍTULO IV. DE LOS DERECHOS Y OBLIGACIONES DE LAS PARTES. Artículo 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 artículos 1.563 y 1.564 del Código Civil. La obligación de reparación tiene su límite en la destrucción de la vivienda por causa no imputable al arrendador. A este efecto, se estará a lo dispuesto en el artículo 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 Says:

  Tue, Nov 24th 2009, 15:04

  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 Says:

  Tue, Nov 24th 2009, 15:59

  You'e most welcome Teddy. Kind regards, Raymundo Larraín Nesbitt

• Susan Says:

  Tue, Dec 22nd 2009, 16:46

  Hello, I am currently 7 months into an 11 month contract (although the contract was drafted in english not spanish - please comment on validity) and 2 months in arrears. I paid the usual months deposit and month in advance upon moving into the property. Further payments were made by bank transfer until 2 months ago when I lost my job and couldnt pay my rent. The Landlord is now threatening to change the locks and cut the electric off if I dont pay all the arrears in the next 10 days. 1. Can she do this? 2. What are my rights? 3. What procedure should she be following? 4. What should I do if she does change the locks while I am out? 5. What penalty would she face? I am genuine and want to remain in the property but am afraid I will be unable to met with his unreasonable timescale for the repayment. I want to reach an amicable agreement with the landlord but it seems she isnt interested. What can I do? Thank you in anticipation of your advice

• Antonio Flores Says:

  Wed, Dec 30th 2009, 17:38

  Dear Susan, The landlord is not entitled to change locks or switch supplies of as this is considered to be a criminal offence. You should send the landlord a letter to the effect of warning him that if any of the above are carried out you will take legal action. If the landlord wants you out of the property he has to send you notice of payment and evictions and then file a Court case, which will take a few months. Even though you are bound by a contract generally speaking landlords prefer to settle the matter even of the lose a month or two than having to go to Court. I trust this is useful advice. regards Antonio

• Katrinre Says:

  Tue, Jan 12th 2010, 11:42

  I have property in costa del sol, my tenant were late always on payment and now they left the property without paying 3 month rent and bills and they have another 6 month to their agreement. The agency did not do much to recover the money from them despite I am paying them management fee. Please let me know what I need to do, I am also late on my mortgage payment with bank, which is very serious.

• Lawbird Lawyer Says:

  Tue, Jan 12th 2010, 12:01

  Dear Madam, In all honesty it is not an Estate Agency's job to recover unpaid rental. They simply cannot. As a Landlord you are legally entitled to claim from your now ex-tenant all the owed rental, that is the full 9 months. It us up to you to decide if you want to pursue them through the law courts to claim back the unpaid 9 month's rental besides legal interests. Regarding the arrears you mention it is indeed a very serious issue. We have a very long thread dealing with this matter: Bank Repossessions in Spain: A Legal Perspective - 25th June 2008 I believe the arrears should be your prime concern now and you should give them priority. Unpaid rental is second tier in comparison. Yours faithfully, Raymundo Larraín Nesbitt

• Hedgepog Says:

  Wed, Jan 20th 2010, 13:08

  My sister has a flat that she has been renting out successfully for several years through an Agent in a small town near Vera. In August 2009, after the property had been empty for a couple of months, her Agent said he was returning to the UK but a friend of his would take over the letting of the flat but that an elderly couple would like to rent the flat. My sister agreed to this. However the elderly couple have refused to pay rent, it also appears that they have changed the locks on the property. My sister sent another representative to talk to the 'squatters' and at this meeting they agreed to start paying rent for which my sister sent them bank details. However no money has been forthcoming. The 'squatters' are now claiming they have squatters rights and are refusing to pay. What should my sister do?

• Lawbird Lawyer Says:

  Wed, Jan 20th 2010, 15:13

  Dear Sir or Madam, I was wondering when I would be asked this question. With the ongoing credit crunch the number of reported squatters has soared in Spain. If you watch the Spanish news it's becoming all too common nationwide. The high levels of unemployment are driving people to take extreme measures with vacant properties. From a legal standpoint the problem is how long it takes to have them removed from the property, if at all. Art 202 of the Spanish Criminal Code rules on this type of crime. Depending on how clogged the law courts are it can take between 2-4 years or even more to have them removed, in which time the property may have been completely vandalised with even the fixtures being ripped of the walls, including floor tiles and pipes which are then resold. Let me add that if you are repaying a mortgage loan you will have to continue servicing it regardless. And it gets worse. There have been quite a few rulings recently of judges which have established that squatters cannot be removed from the property they are squatting as it's the only place they have to dwell in (!). So effectively it's as if some judges invited other would-be-squatters to follow suit in view of the impunity of their actions and complete disregard for our laws. Recently a luxury unsold development in Mijas (Costa del Sol) which had been repossessed from the developer by the lending banks was invaded by a huge family of gypsies (150 + !!) which literally stormed into the place swarming it: Gypsy families squat in empty Mijas apartments. Surinenglish.com The problem is that this trend is catching on with the financial crisis and more squatters are being reported. And the same as in England & Wales, the property becomes legally yours after uninterrupted possession (30 years) even if contested and in bad faith. Yours faithfully, Raymundo Larraín Nesbitt

• roddie Says:

  Sun, Jan 24th 2010, 00:14

  Dear Sir I am using a Spanish Lawyer in Fuerteventura to try to evict a man who refused to sign the contract he was given. I had stupidly given him jey about 4 days befor e he got it. He paid some rent for a few months but now owes me over a years worth. I have been asked by the lawyer after many months to give them a form signed by me and apostilled by the foreign office. Is this a normal request, I am surprised it was not asked for immediately - not several months later. They have said to me the court has loads of cases and can give not time scale for the eviction. I am getting concerned the money send to them may have been a waste of time as inefficiency seems so rife. Yours Roddie

• Lawbird Lawyer Says:

  Mon, Jan 25th 2010, 09:42

  Dera Sir, I would imagine this "form" is the litigation POA your lawyer needs to represent you and have your non-paying tenant legally evicted. Yours faithfully, Raymundo Larraín Nesbitt

• kelly Says:

  Fri, Jan 29th 2010, 16:22

  Hello. We have rented our house for 7 months to a couple. They have a contract saying that they are responsible to pay the utilities etc. They were told that they have to give 2 months notice if they want to leave before the end of the contract. They are always late with payments and will not pay the utilities. They say they are leaving with one months notice and are due to go in the next 2 weeks. They say take the money out of the deposit but the deposit will not cover what they owe and continue to build up debt. They lie that they have done a transfer and they havent. The agent only provided their passport numbers and we know they are going to another part of spain. We want to sue them but as they are leaving in 2 weeks time we will not have a forwarding address for them. Is it possible to issue a denuncia for unpaid rent and utilities that could be served by local police and they could see the tenants official id. more importantly could they make them give them their forwarding address which I believe to be in Malaga. Any advice would be greatly appreciated. Thanks

• Lawbird Lawyer Says:

  Mon, Feb 1st 2010, 11:34

  Dear Sir, Even if they do not have a forwarding address you can regardless issue legal proceedings against them. At some point or other they will have to enter or exit this country and may be stopped. In any case if they have assets abroad, i.e. in the UK, you can always place a charge against them following a Spanish ruling. Please contact us on your matter and we will advise further. Yours faithfully, Raymundo Larraín Nesbitt