When a property is rented, whether it is for residential or non-residential purposes, the landlord can sue the tenant, enabling a judge to order the tenant to pay the unpaid rent, as well as any amounts associated with it or any amounts the tenant would have been liable to pay, and to leave the property so that the landlord can regain possession.
The amounts associated with the rent and the amounts the tenant is liable for are monies which the tenant is obliged to pay aside from the rent. For example, water, electricity, gas, etc., or the municipal fee for the waste collection service or the property tax when the tenant is the one obliged to pay these costs.
If the tenant does not pay these amounts, the landlord may initiate legal proceedings to demand that the tenant is ordered to pay the amounts owed and vacate the rented property. The process of the property being vacated is legally referred to as eviction.
However, it is not always possible to have a tenant evicted for the following reason.
1. Possibility of the tenant preventing eviction from the property or using his right to avoid eviction (enervation).
As mentioned above, non-payment of rent allows the landlord to ask a judge to order the tenant to vacate the property. However, the law protects the tenant, whether the property is for residential or non-residential purposes, and offers the tenant the possibility of paying the amount claimed by the landlord in order to continue using the property, in accordance with the conditions of the rental agreement.
When the landlord sues and requests the tenant be evicted, the court checks that the lawsuit meets all legal requirements, and if so, accepts the lawsuit and summons the tenant so that within ten days: (i) they vacate the property; or (ii) in the event that they wish to avoid eviction, they pay the full amount due or make the amounts requested in the claim and those due at the time of payment available to the landlord in court or through a public notary. Please note that some months may pass between the moment the claim is filed and the moment the payment intended to settle the dispute is made, so the amount claimed in the lawsuit could be increased by several months’ rent and other amounts, such as utility expenses.
If the tenant pays or makes the outstanding amounts available to the landlord, this can prevent him from being forced to leave the property and thus have the right to continue using the property under the same conditions of the rental agreement. However, the right to avoid eviction (enervation) can only be used once. If the tenant makes use of this option, he will no longer be able to prevent eviction from the property during the remaining period of the lease and will be ordered to vacate the property through the courts.
That said, the protection the law offers the tenant is counterbalanced by the possibilities the law offers the landlord, which are outlined below.
2. How the landlord can prevent the tenant from avoiding eviction.
The law enables the landlord to prevent the tenant from avoiding eviction, but in exchange he must provide the tenant with a reasonable period of time to settle the outstanding amounts.
So, the law states that if the landlord wishes to prevent the tenant from avoiding eviction (enervation), he is obliged to request the payment of the amounts due, in a verifiable certified manner, at least thirty days before the filing the lawsuit (these thirty days do not include Saturdays, Sundays or public holidays). If the landlord files the lawsuit after these thirty days and the tenant has not paid, the tenant can no longer prevent eviction from the property.
A certified summons provides proof of the content of the summons and its receipt. For example, a registered fax with a certified copy and acknowledgement of receipt or a notarial request would be valid as a certified summons. On the other hand, a registered letter with acknowledgement of receipt would not be valid, since although it may prove that the letter has been received, it fails to prove the content of the letter.
Regarding other types of communication, particularly electronic means, such as e-mails, SMS, audio notes, WhatsApp or any other type of instant messaging, which are used so frequently nowadays. It would be necessary to examine the evidence in court so that the judge can determine whether the summons was credible or not, considering the circumstances of each individual case.
In relation to the enervation process, the landlord is obliged to state in his claim whether or not enervation is applicable, either because the tenant has used his right to avoid eviction (enervation) on a previous occasion, or because he has been duly summoned and has not paid within the period granted by the law.
Therefore, when a landlord intends on suing a tenant for non-payment of rent he must decide whether to order the tenant to pay the outstanding rent and sue after at least thirty days from the date the tenant received the notice or, to file the lawsuit immediately, but risk the tenant being able to pay or settle the amounts due and, consequently, stop the eviction process and continue to rent the property. Sometimes tenants do not pay because they do not have the money, so it is difficult for them to gather the money within ten days of being notified of the lawsuit. However, there are other occasions when the tenant does not pay, that would not prevent him from paying in due course, thus preventing the eviction order.