Tenants not paying rent

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04 Aug 2011 12:00 AM by katrina2 Star rating. 2 posts Send private message

I have had long term Spanish  tenants in my property for the past two years. They have now decided they are not going to pay the rent any more!!!

 

Has anyone had experience of evicting tenants and if so can you recommned a lawyer (if necessary) and an idea of cost please

Fed up and desperate

katrina





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04 Aug 2011 11:10 AM by El alamillo Star rating in Nottingham & El Alam.... 221 posts Send private message

 

Borrowed

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 the 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.

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.


Try 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.

 

You can't 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.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.

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.



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JB



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04 Aug 2011 1:56 PM by katrina2 Star rating. 2 posts Send private message

many thanks for this comprehensive reply albeit it very depressing.

Is there a situation in Spain as it is in the uK  that if the proeprty is you main residence and you want to go back and live in it you can get the tenants out?





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04 Aug 2011 2:28 PM by campana Star rating in Marbella. 474 posts Send private message

campana´s avatar

Katrina:

The situation is indeed as set out by Alamillo.  You will need to see a solicitor, and get the procedure in motion.  I should add that in the U.K. proceedings for possession are not dissimilar.  And in the U.K. there is also protective legislation whereby "unlawful eviction and harassment of a residential occupier is a criminal offence". and "....it is not lawful to recover possession other than by a court action".

It would certainly be best if at all possible to get the tenant to quit amicably.  The solicitor's letter will no doubt invite the tenant to get in contact to discuss the matter.

Patricia





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08 Aug 2011 4:29 PM by manyarna Star rating in the UK- Heart is in .... 59 posts Send private message

Sorry to hear about  your tenants,

In Spain is it generally any easier to evict if the tenancy agreement is on a holiday type let or a 1 to 3 months basis firstly ;  then later extended or renewed?

 





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10 Aug 2011 6:14 AM by Bigwilly Star rating in Spain of course. 118 posts Send private message

I am interested in this.

Does anyone know if you can move someone else into the property at the same time?

It does sound like a silly question but i ask for a reason.

If you are going to lose thousand of pounds by fighting to get them out i will move into the property as well.

A few days living with me and they will be running for the hills.





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10 Aug 2011 9:54 AM by manyarna Star rating in the UK- Heart is in .... 59 posts Send private message

I dont know if you are being serious BW but you may have  point.

 If in spain eviction is so longwinded you maybe able to offer lodger type tenancy's where they dont have exclusive use of the whole property otherwise under normal tenants rights you sound like your lifestyle would be classed as harrassement

Why not just twiiter that the tenants have got loads of mobile phones and cash in there and come night time the looters will be on a cheap flight......

 





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10 Aug 2011 2:27 PM by Bigwilly Star rating in Spain of course. 118 posts Send private message

very serious.

two tenants both with contracts.

one stopped paying so you assumed they moved out.

so someone else moved in.

this is the normal procedure.

if the person didnt move out then we have a problem because the new tenant is moving all his stuff in.

you were in uk so when the old tenant stopped paying rent you had no reason to assume they were still in your house so you did what everyone else does on the coast and rents to the new person.

 

 





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10 Aug 2011 6:01 PM by manyarna Star rating in the UK- Heart is in .... 59 posts Send private message

From what I have seen about Spanish tenants rights i dont think you would stand a chance and it would be clearly be deemed harrassement,  The earlier dated agreement would stand and the non payment a civil dispute by the sounds Nice try if you have a rather large mate thats up for a row but if the Gaurdia are called i think the non paying tenant will win.

You could also then end up having to provide alternative accomodation at a different location for the new tenant (not a problem if its a mate)  to the old one who is not paying.

Not my view on whats right just comments on what i have seen elsewhere?





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10 Aug 2011 6:45 PM by georgeh Star rating in condado de alhama sp.... 1462 posts Send private message

 totally illegal but it works, turn off the electric or the water.

my mate did it and they moved in 6 hours



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10 Aug 2011 6:58 PM by Bigwilly Star rating in Spain of course. 118 posts Send private message

i know thats really wrong and you shouldnt do it.

but what if you are in the uk and someone else turns it off?

or it develops a fault or something similar





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10 Aug 2011 7:10 PM by manyarna Star rating in the UK- Heart is in .... 59 posts Send private message

Your best bet is have your bank account kept lean so that if the tenants direct debit doesnt hit then yours bounces on the elec and water..... understand you may get some charges but how long they gona stay with no elec or water.

If your in the Uk and you have got someone that can go round and turn it off etc that cant be linked to you then they would struggle to prove things and soon get the message....

What we want to know from the legal beagles is what is the best legal way to protect ourselves,

Short term agreements?

Lodger type agreements? etc





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10 Aug 2011 7:13 PM by Bigwilly Star rating in Spain of course. 118 posts Send private message

i think legally you need to keep paying the bills.

in fact i am sure you have to so you cant just have them bounce





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10 Aug 2011 7:27 PM by manyarna Star rating in the UK- Heart is in .... 59 posts Send private message

You do have to legally keep paying the bills but no different to how you should'nt get someone else turning off the water,

If the court thinks you just cancel the D-debit then its obvious why you did it.

however if it bounced because the tenants rent didnt go in and you hadnt noticed then thats unfortunate...

how longs someone going to stay as we said with no supplys.





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10 Aug 2011 7:37 PM by campana Star rating in Marbella. 474 posts Send private message

campana´s avatar

New fast-track proceedings for removal of tenants from possession?

http://www.diariojuridico.com/opinion/la-nueva-ley-de-desahucio-express.html

 





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10 Aug 2011 8:16 PM by georgeh Star rating in condado de alhama sp.... 1462 posts Send private message

 if they are supposed to pay the bill and they dont and they get cut off are they really going to chase you or the water company- i dont think so.

However another  way is  to put the electric in their name and keep the water in yours and charge them with the rent. water isnt alot so just add the usually rate to the bill. If the water is cut off and they havent paid the rent then its a supply problem and you are in outer mongolia

simples



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10 Aug 2011 8:23 PM by rod Star rating in Uk and Spain. 468 posts Send private message

What a terrible problem ,to be honest I would never long term rent my property in Spain to much RISK short term lettings no problem they have a plane ticket

Rented short term last 5 years always got paid and worse damage a couple of broken glasses

I have a UK property portfolio and just wish it was as easy to run

Regards Rod





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10 Aug 2011 8:30 PM by georgeh Star rating in condado de alhama sp.... 1462 posts Send private message

 Totally agree.My friend is a  letting agent and they  now very reticent to do long term rents. Too much power in the hands of the tennants.  They are sticking to short term lets.



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10 Aug 2011 8:38 PM by manyarna Star rating in the UK- Heart is in .... 59 posts Send private message

What is the term covered by short term lets? in Spain

Are they renewable? extendable?





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10 Aug 2011 8:58 PM by Bigwilly Star rating in Spain of course. 118 posts Send private message

i did find it harder this time to get a short term 6 month let than i did an 11

and i ended up having to pay it all upfront because i dont have a job contract and dont bank in spain.

i went to look at a place in marbella near a tennis club and by the sound of it there would have only been me paying rent in the block of houses.

she was telling us how loads were not paying their rent so it is a huge problem





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