A tenant's failure to pay rent is a major concern for every homeowner. Understanding effective legal options for handling such situations is vital to avoid potential headaches. We invite you to read on to learn more about this topic.
In Spain, a landlord can begin legal proceedings after one month of not receiving rent payment. To do this, and once the lease agreement begins, it is necessary to establish a defined payment period within the month; for example, the tenant is obligated to pay within the first seven days of the month. If they fail to pay within that period, the landlord can initiate legal action.
If you are facing rent non-payment from a tenant, it's best to start by speaking with them to reach an amicable agreement. If an agreement cannot be reached, it is advisable to proceed with legal action. Here are the steps you can follow in this situation:
Before initiating any legal action, it is advisable to review the rental agreement or lease to validate the clauses and penalties previously established in case of payment default. Sometimes the contract already includes predetermined clauses that outline specific actions in case of non-payment, such as late payment interest or immediate termination of the contract.
If the contract does not include these provisions, proceedings must follow current Spanish legislation, where the landlord has up to 30 days to claim non-payment through a lawsuit.
If the tenant does not respond, send them a notarized letter requesting timely payment. This letter should specify the amount owed, the deadline, and the consequences. If the tenant ignores the letter and fails to make timely payment, you can initiate eviction proceedings.
This is the legal action that compels the tenant to pay the rent debt and corresponds to the legal action of requesting eviction. We will provide details of this process later.
If the tenant continues to fail to pay rent, here's a guide on how to proceed:
As mentioned, the first option prior to eviction proceedings is a notarized letter or burofax requesting the tenant to pay the outstanding debt. It is advisable that this letter specifies a determined payment period, for example, 15 days, for the debtor to make the payment voluntarily. If the non-payment continues, an eviction lawsuit can proceed.
This is the legal tool that allows property owners to recover possession of a home or premises in the event of rent non-payment by the tenant. It is filed in the court of first instance when the tenant continues to evade rent payment after receiving a formal notice. This requires the intervention of a lawyer to sign the lawsuit; this process aims to evict the tenant and recover the rent.
Stages of the eviction process:
You might also be interested in: what is eviction.
This involves claiming payment for outstanding rent, which can be done within the eviction process itself or through a process called a payment order; we will delve into more details about the latter.
The minimum period for an eviction to become effective can be up to six months. Sometimes it can extend up to 12 months. Factors that can influence the length of this process include the workload of the courts, where case backlogs lead to longer resolution times; another reason could be the tenant's opposition, presenting extensions or allegations.
Some processes may also take longer if the tenant is in a vulnerable situation. Finally, the trial date begins after judicial notification; if the notification is delayed, so too will the rest of the procedures.
If you have already recovered the property, but the tenant still owes rent, you can do the following:
You can file a 'procedimiento monitorio' (summary payment order) in the court of first instance to claim the debt. For this, it's important to gather all supporting documentation, such as the burofax initially sent, outstanding invoices, and communications exchanged with the tenant.
The court will then send a communication to the tenant demanding payment within 20 business days. If payment is made, the case will be closed.
If the debt is not settled, the judge will have the power to issue an enforcement order that will allow the seizure of assets or bank accounts registered in the tenant's name until the full amount of the arrears is covered.
According to the Civil Procedure Law (LEC), different types of tenant assets can be seized:
Money and bank accounts: As mentioned, the judge orders the bank to freeze the account in the tenant's name and transfer the funds until the debt is paid. If the funds are insufficient, other assets will be seized.
Salaries and pensions: The tenant's income can be garnished, although it is mandatory to respect the amount of the Minimum Interprofessional Wage (SMI), which is unseizable. This means that if the tenant earns less than the SMI, their salary cannot be garnished. If the salary income is higher than the SMI, the garnishment percentage will be governed by a scale defined by the LEC.
Movable and immovable property: Assets such as jewelry, vehicles, home appliances, works of art, or any other valuable registered asset belonging to the tenant can also be seized. In advanced and extreme cases, real estate may also be seized.
No attachable assets: If the tenant does not possess attachable assets, they may request that the debt remain active until they acquire income or assets. This means the landlord will have to wait for a period, which unfortunately could be quite long, to effectively collect the outstanding payment.
Property owners can implement several strategies before a rental agreement begins to avoid unfavorable situations like non-receipt of payment.
It is advisable to conduct a solvency check where the tenant provides bank and employment certifications to confirm their ability to pay rent in the medium and long term.
It is advisable to ask the tenant to provide documentation such as pay stubs, employment contracts, tax returns, or bank statements. With this information, you can verify that they have sufficient and stable income to pay the rent.
The real estate delinquency database (BDMI) is a registry that provides access to useful information, helping to avoid formalizing lease agreements with individuals reported as recurrent debtors.
You can add a legal deposit to the lease agreement, which, according to rental law, can cover one month's rent. An additional guarantee can also be requested to secure a second month's rent or to arrange for non-payment insurance.
Maintain strict control over payments by agreeing on an automatic payment method, sending payment reminders if there are delays, and acting quickly in case of non-payment.
If possible, obtaining references from previous landlords will allow you to assess whether it is worthwhile to proceed with the lease agreement process with the tenant.
Non-payment insurance is an excellent tool to cover rent payments in case of default. To obtain this type of insurance, the insurer first analyzes the tenant's profile to determine their solvency, generally requiring them to have an indefinite contract or to certify a stable monthly income.
If the tenant stops paying, the insurer is responsible for paying the landlord the monthly installments up to the contracted limit, which can be 6 to 12 months. They also provide legal advice for filing an eviction lawsuit against the tenant.
Some insurance policies include additional benefits such as repair of damages caused by tenant vandalism, coverage for unpaid utilities, and legal assistance.
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Non-payment of rent is a common concern for all property owners interested in earning income from renting out a property. It is essential to conduct a detailed study of candidates, their solvency, check the debtor registry, and add clauses that cover a couple of months' rent to initiate legal proceedings if necessary. With detailed strategic planning, you can manage a rental without headaches.
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598.506,15 €
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