THE CONNECTION OF THE TWO PROCEDURES, RENT CLAIM AND EVICTION, AND THEIR IMPORTANCE.
Placing the article in the context of Real Estate Law, these two procedures correspond to different situations in the interrelation of the landlord with his environment, but they are closely related.
Firstly, the claim for rent is an essential tool to prevent the tenant of a real estate property from normalizing the situation of non-payment of rent without any consequences. The damage for the landlord is twofold: firstly, not receiving an amount that corresponds to him according to the provisions of the contract, with the financial consequences that this may have. Secondly, the tenant, as a general rule, continues to live in the property despite not paying, blocking the entry of other potential tenants.
With respect to the eviction, it is a procedure of forced execution of the eviction order, it is the last resort, used when the tenant who does not have the right to remain in the property resists to leave it. This method cannot be resorted to except for procedures and reasons specified by law. It is also crucial when it comes to defending the interests of landlords, both for companies that dedicate their activity to the leasing of real estate and may see their income decrease exponentially, as well as for small landlords who, on numerous occasions, receive the stipulated amount of rent payment as a salary.
These two procedures are connected to each other. The non-payment of rents often leads to the need to initiate an eviction procedure with a launching (which can be processed together with the claim for rent). These are the two options for the creditor, which can be exercised jointly.
The article will be divided into the steps to be followed from the beginning of the non-payment of the rents until the abandonment of the property by the debtor, there being two main ways to achieve the objectives set by the plaintiff.
THE EXECUTIVE PROCESS OF EVICTION AND THE CLAIM OF DEBTS: THE TWO WAYS TO PROCEED WITH THE PROCESS
The first option of the landlord, which is usually chosen when he is confident that the debtor will not refuse to abandon the property, is to opt first for the verbal lawsuit proceeding to claim the rent due, without requesting the subsequent eviction together with this requirement. After the claim for payment of the rents due via verbal trial, and with a final judgment that obliges the payment of the amounts fixed to the tenant, it is not always necessary to resort to the executive procedure of eviction.
However, when it is concluded from the debtor’s behavior that there will be difficulties in recovering possession of the property, a joint action for eviction and claim for rent due may be brought. This is the most useful for the purposes of temporality, avoiding the termination of one process and the initiation of another and delaying the proceedings more than necessary.
Article 220.2 of the Civil Procedure Law empowers the plaintiff to request in the eviction claim that it be obliged to pay the rents whose payment obligation arises after the filing of the claim.
It is important at the beginning of the process, for the determination of the amount (for the purpose of conditioning factors such as the subsequent assessment of costs) to take into account the special rules for the determination of the amount of art.252 of the Civil Procedure Law. In case of exercising the joint claim, it will be taken between the actions of rent claim and eviction the one that is quantified in the higher value.
The exception to the prohibition of the objective accumulation of actions in oral proceedings is found in art. 437.3 bis 3º of the Civil Procedure Act. Therefore, the creditor may initiate the joint claim for the payment of the debts owed and the abandonment of the real estate, with the consequent recovery of the possession of the property.
When drafting the eviction lawsuit, it is essential to establish the conditions that may allow the enervation of the eviction. Otherwise, the claim will be inadmissible, as stated in art. 439.3 of the Civil Procedure Law.
The verbal trial procedure previously developed for the joint claim for eviction and payment of the rent due will be followed, but there is a main specialty:
Art.440 of the Civil Procedure Law remarks that, in the 10 days following the admission and transfer of the claim to the debtor, 3 possible options will be provided: that he vacates the property (the rents due should still be paid) that he pays the totality of the debt to seek the enervation of the seizure, or that he opposes to what is exposed by the plaintiff.
JUDICIAL CLAIM OF RENTS BY VERBAL TRIAL
In this case, it is important to point out that the Civil Procedure Law, in its article 250.1.1º; determines that claims for non-payment of rents or amounts owed by the tenant (together with others such as the claim for possession after the expiration of the agreed term), among others, will be decided exclusively by verbal trial, regardless of the amount. Therefore, in order to initiate a claim for the payment of rents owed, it will be necessary to resort to this proceeding under the Civil Procedure Law.
The postulation, in this case, is mandatory, following the reform of article 31 of the Civil Procedure Law. The only exception established by this article (trials by reason of the amount and that this is less than 2000 euros) does not operate in this case, since it is a procedure fixed by reason of the subject matter. Therefore, the lessor claiming the rent due must be represented in order to initiate the proceeding.
Articles 85 of the Organic Law of the Judiciary and 45 of the Civil Procedure Law state that the Courts of First Instance shall have jurisdiction. Article 52.1.7 of the Civil Procedure Law establishes jurisdiction based on the place where the property is located.
The Law of Civil Procedure also specifies, in article 250.1.1.1 and 250.1.2.2 that in order to exercise the action of recovery of possession of the property, whether for non-payment, expiration of the term or for previous assignment in precariousness, they will be guided by the procedure of verbal trial. The two actions are compatible in any case, so that the verbal trial procedure must be used, taking into account the special features mentioned above.
The phases of the verbal trial procedure are the following:
a) Admission and transfer: The lawsuit is filed so that, after admitting it, the Justice Administration Lawyer, by decree, will transfer it to the other party so that it may answer within 10 days.
b) Answer to the lawsuit: The defendant will present the written answer, where it will allege the facts that it considers pertinent and will pronounce on its will on the later celebration of the hearing.
c) Hearing: It will not necessarily be held, since, in the event that the parties do not request it and the competent court does not consider it necessary, a judgment will be rendered without further proceedings. The hearing is divided into three stages: allegations, evidence and conclusions. It is crucial to know the conditions stipulated by the Civil Procedure Law, such as that if the plaintiff does not appear, he will be deemed to have withdrawn, or that if the defendant does not appear and has been summoned as a witness, the facts stated in the interrogation may be considered admitted.
d) Judgment: The Court will render judgment within 10 days after the hearing (if held).
THE LAUNCHING AS THE FINALIZATION OF THE EVICTION PROCEDURE
The launching is the part of the process in which, having finished the procedure initiated with the purpose of recovering the possession of the property (or the end of the possession or the use of the property by the tenant in default or free of charge), it has not been achieved that the person occupying the property decides to leave it.
The ”cross-reference” between articles 661 and 675 of the Civil Procedure Law is specially curious. Beyond this, what is clear is that there are two main procedures to request the launching:
I- Request in fact assumption in the scope of the auction: one goes to 661.2 Civil Procedure Law and, prior to the announcement of the auction, a petition will be issued to the Court to declare that the occupants do not have a legitimate right to remain in the property. In this case, a hearing will be held in accordance with the provisions of 675.3 Civil Procedure Law, so that the occupants can defend themselves. If the request of the affected party is granted, the eviction will proceed immediately.
II- Request in the rest of the cases: when it has not been previously proceeded to the request that derives in the launching that marks the article 661.2 Law of Civil Procedure, the art.675 Law of Civil Procedure empowers the owner to request within the term of 1 year from the acquisition of the property the declaration that the occupants do not have right to remain in the property. The occupants are also granted a hearing to defend their possible rights to occupy the property.
Article 705 of the Civil Procedure Law reinforces the idea of the obligation to do contained in the executory title; in this case, the obligation to vacate the property within the established time limits. If not, the so-called “launching” takes place.
Therefore, a request to the competent court is required for the launching, which will not be carried out directly, but within an executive eviction procedure.
It is crucial to consider that, with the pandemic situation that Spain and the rest of the world have suffered, it has been decided to paralyze in many states the evictions and, therefore, the evictions. This is the so-called ”social shield” where, due to the situation in which many families are living and which has made it impossible to pay the rent, this type of executions are suspended in order to minimize the damage to these families. What does this mean? That, after the end of the extension of these specific measures (February 2022) there is a backlog of procedures that will have to be managed as efficiently as possible.
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