Two provisions get mixed up in almost every enquiry about a tenant who has stopped paying, and they do not say the same thing. Article 27.2.a of Law 29/1994, the Urban Leases Act (LAU), allows the landlord to terminate the lease for non-payment of rent or of any other sum the tenant undertook to pay. Article 250.1.1 of the Civil Procedure Act (LEC) governs something else, the summary eviction proceedings through which possession is recovered when the tenant, lease terminated or not, is still inside. The first rule gives you the right to end the contract. The second gives you the route to recover the property and collect. A landlord who sends a formal notice citing the LEC, or files a claim believing that having communicated the termination in writing is enough, confuses the title with the path, and that confusion costs months of proceedings.
One unpaid month is already enough to sue
The LAU does not set a minimum number of unpaid instalments. Article 27.2.a refers to non-payment of rent or of assimilated sums, and a single month due and unpaid allows you to terminate the lease and go to court. Whether it is advisable is another matter. With a single unpaid instalment the tenant can easily pay up and cure the default, and a claim filed on the 6th of the month is viewed with suspicion. With two or three months the situation is clear to everyone and the possibility of curing, if the prior notice was done properly, no longer exists.
Sums assimilated to rent matter more than they seem. Community charges and property tax, if the lease passes them on to the tenant under article 20.1 LAU, and individually metered utilities, which are always the tenant’s responsibility under article 20.3, are grounds for termination on their own. A tenant who pays the rent punctually but has gone a year without paying the electricity or the community charges he assumed under the lease is in the same legal position as one who pays nothing. And article 27.2.b adds another independent ground, non-payment of the deposit or of its update.
The prior demand for payment and the right to cure
The right to cure, known in Spanish as «enervación», is the mechanism that frustrates most evictions. It is governed by article 22.4 LEC and works as follows. The tenant, already sued, pays everything owed at that moment and the proceedings end without eviction, with the lease alive and the landlord paying his own lawyer and court agent. The law allows it only once during the life of the lease, and excludes it in one specific case, where the landlord has demanded payment from the tenant by any verifiable means at least one month before the claim and payment has not been made by the time the claim is filed.
That rule is where the registered notice with acknowledgment of receipt and certified content, the «burofax», comes from, and it opens almost all of these cases. It serves two functions, documenting the debt and closing the door to the right to cure. A badly drafted notice, stating the wrong amount, sent to an address other than the one in the lease, followed by a claim before the month has run, or undermined by partial payments accepted without recording what they are applied to, leaves the tenant free to pay at the last minute and stay. How it is drafted and how it is proven to do its job is the lawyer’s work, and at the firm we do it before anything is filed.
It is worth knowing that a friendly prior approach is not a legal step and does not replace the formal demand. Calling, messaging or meeting to talk tells you whether the tenant intends to pay or to leave, and sometimes solves the problem without court. What it does not do is prove that payment was formally demanded, and dragging that phase out for months only grows the debt.
What you can obtain in court
Article 250.1.1 LEC channels eviction claims for non-payment of rent or sums owed by the tenant through summary proceedings. Article 437.4.3ª allows the claim for rent due, and for rent that continues to accrue until the property is handed back, to be joined in the same claim regardless of the amount. You therefore obtain in a single proceeding both the eviction and the order to pay, which is why it makes no sense to bring the money claim separately. As a general rule it is conducted with a lawyer and a court agent.
Once the claim is admitted, article 440.3 LEC orders the tenant to be required to pay, vacate or oppose within ten days. The landlord may offer in the claim to waive all or part of the debt if the tenant leaves voluntarily within a set period, an option that sometimes pays off when what you want is the property back quickly and the debt is hard to collect. If the tenant does nothing, article 440.4 provides that the proceedings end by decree and the eviction takes place on the date already fixed. If he opposes, there is a hearing and a judgment ordering him to vacate and to pay what is owed plus costs under article 394. Article 549.3 LEC then avoids a second claim, because the request for enforcement included in the initial claim is sufficient to enforce the judgment directly.
Timing depends on the court and on the tenant’s attitude. Without opposition and with a correct prior notice, the matter is measured in months. With opposition, a vulnerability incident and enforcement, it can exceed a year. The main cost is the fees of lawyer and court agent, which individuals can recover through costs if the tenant has the means to pay them, and there are no court fees for private individuals. At the firm we conduct the eviction and the rent claim from the prior notice through to collection, within our civil law practice, and the first thing we do is check whether a notice already sent will hold or has to be redone.
What the tenant will argue and why it prolongs the case
Almost nobody tells the landlord what the other side will say, and that is what turns an eviction of months into one of more than a year. The typical defences are few and repetitive. That he already paid, producing partial receipts or receipts for different months. That he is setting the debt off against the deposit. That he stopped paying because the property has defects the landlord will not repair. That there was a verbal agreement to reduce or defer the rent. That the notice never reached him. And, increasingly, that he is in a situation of vulnerability.
None of them succeeds easily. Article 21 LAU obliges the landlord to keep the property in repair, but a tenant who wants repairs must claim them, and cannot simply stop paying as a means of pressure. The deposit does not offset rent, as I explain below. A verbal agreement to reduce the rent must be proven by whoever alleges it. But all of them force a hearing, and the verbal agreement is proven through the landlord’s conduct, so accepting smaller sums for months without recording that they are payments on account of the total debt is the surest way to hand the tenant that defence.
The vulnerable tenant and the suspension of the eviction
Law 12/2023 on the right to housing amended the LEC and is today the rule that most conditions these proceedings when the property is the tenant’s habitual residence. Article 439.6 LEC requires the claim to state whether the property is the defendant’s habitual residence, whether the landlord is a large holder and, if so, whether the tenant is or is not in a situation of vulnerability. A claim that omits that information is not admitted, and with a non-paying tenant that means lost months.
A large holder, under article 3.k of Law 12/2023, is any natural or legal person owning more than ten urban residential properties, or more than 1,500 square metres of built residential floor space, excluding garages and storage rooms, a threshold the regional governments may lower to five in stressed market areas. A large holder suing a vulnerable tenant must also prove that it has gone through the conciliation or mediation procedure required by article 439.7.
If social services confirm vulnerability, article 441.5 LEC orders the proceedings to be suspended so that measures can be adopted, for a maximum of two months if the claimant is a natural person and four if it is a legal entity. Once that period has run, the proceedings continue. The suspension does not forgive the rent, which keeps accruing and is claimed in the same enforcement, and the Housing Act provides no compensation whatsoever to the landlord for that time. The compensation that existed during the pandemic was tied to that extraordinary suspension and does not apply to this one.
| Rule | What the law says | Provision |
|---|---|---|
| Unpaid months needed to sue | One instalment of rent or assimilated sum, due and unpaid, is enough | Art. 27.2.a LAU |
| Right to cure | Once per lease only, and excluded if a verifiable demand was made one month before the claim | Art. 22.4 LEC |
| Mandatory legal deposit | One month’s rent for residential leases, two for non-residential use | Art. 36.1 LAU |
| Suspension for vulnerability | Maximum two months if the landlord is a natural person, four if a legal entity | Art. 441.5 LEC |
| Limitation period for rent | Five years from each due date | Art. 1966.3 Civil Code |
| Waiting period before enforcing the judgment | Twenty days from its service on the debtor | Art. 548 LEC |
The table gathers the deadlines and thresholds people ask about most and that almost nobody cites with its rule. None of them replaces reading the actual lease, because the deposit clause, the existence of additional guarantees or large-holder status change the path.
Depending on the type of lease and the type of landlord
A lease of a habitual residence, governed by Title II of the LAU, carries full protection, the mandatory extension of five or seven years under article 9 and the vulnerability regime described above. A lease for use other than housing, which under the LAU includes seasonal lets, is governed by Title III with freedom of contract, requires a two-month deposit and is not subject to suspension for vulnerability, because the property is not the tenant’s habitual residence. Renting out a single room usually falls outside the LAU and is governed by the Civil Code, although eviction is still processed under article 250.1.1 LEC, which refers to leases in general.
The small landlord, an individual with one or a few properties, has the simplest procedure and the shortest suspension. A company or an individual above the large-holder threshold adds prior conciliation and a suspension twice as long. Knowing which box you are in before filing avoids the claim being rejected.
Collecting the debt after judgment
A judgment is a title, not money. Article 548 LEC prevents enforcement from being ordered until twenty days have passed since service, and from then on the court, at the landlord’s request, investigates the tenant’s assets and attaches them. Article 592 sets the order of assets, with cash and bank accounts first, and article 607 governs the attachment of salary, pension or benefits, which protects the minimum wage and takes increasing percentages of whatever exceeds it. Tax refunds, vehicles or balances on payment platforms are attached in the same way. When the tenant works or receives regular income, the debt is collected, slowly, but collected.
When he has nothing in his name, the enforcement remains open and the court reactivates it when assets appear, without the debt disappearing because of insolvency. The right to request enforcement of the judgment lapses five years after it becomes final under article 518 LEC, so it cannot be left in a drawer. At the firm we treat collection as a phase of its own within our debt recovery service, because an eviction without collection is half a job.
The guarantor answers sooner than you think
If the lease included a guarantor, the claim need not wait for the eviction. A personal guarantee under article 1822 of the Civil Code obliges the guarantor to pay for the tenant if he does not, and where it was agreed as joint and several, which is usual in Spanish leases, article 1831 deprives him of the benefit of prior exhaustion of the debtor’s assets. The debt can be claimed from him directly, together with the tenant in the same claim or separately, without first proving that the tenant is insolvent.
The limit lies in what the guarantor signed. He answers for the rent of the agreed term and, as the courts have generally held, for the mandatory statutory extensions that were already in the law when he bound himself. Article 1851 of the Civil Code extinguishes the guarantee where the creditor grants the debtor an extension without the guarantor’s consent, so renewing or amending the lease without involving him may release him. A first-demand bank guarantee works differently, it is collected from the bank on simple demand in the terms of the guarantee, and it is the most effective security of all when you can get it.
The deposit cannot be used to pay rent
Article 36 LAU treats the deposit as security for performance of the lease, not as advance rent. A tenant who skips the last month saying that the landlord «already has the deposit» is in default all the same, and the landlord may claim that month and, at the end, apply the deposit to whatever is due. The application is decided by the landlord at the end of the lease, in a logical order, outstanding rent and assimilated sums, and damage to the property beyond ordinary wear under articles 1561 and 1563 of the Civil Code, which make the tenant liable for deterioration unless he proves it occurred without his fault.
If the debt exceeds the deposit, which is almost always the case after an eviction, the difference is claimed in the same proceedings. Additional guarantees permitted by article 36.5, up to two months’ rent in residential leases of up to five or seven years, are applied in the same way. Any balance in the tenant’s favour must be returned within one month of the return of the keys under article 36.4, with statutory interest if late, so the final account is best done in writing and with figures.
He has left owing money, leaving damage, or without returning the keys
Rent accrues until possession is returned, and that return is made by handing over the keys. A tenant who leaves without notice and without returning them still owes rent, and a landlord who simply enters the flat runs the risk of the tenant claiming he had not abandoned it. Where there is a clear communication that he has left, the flat is empty and he ignores demands to hand over the keys, physical recovery is defensible, and it should be documented with witnesses or a notarial record of the state of the property. Where there is doubt, the safe route is to ask the court for possession, even if it takes time.
Furniture and belongings left inside have legal treatment in enforcement. Article 703 LEC provides that, if the tenant does not remove them within the period set by the court, they are deemed abandoned. Outside enforcement there is no such cover, and throwing away someone else’s belongings without judicial backing is a source of claims. Damage is claimed with the entry inventory, photographs and estimates, within the five years of article 1966.3 of the Civil Code that also govern rent, and the period is interrupted by an out-of-court demand under article 1973. If the property came to you through an inheritance or a lifetime transfer such as the Galician «apartación», check first who the landlord of record actually is, as I explain in this article on inheritance in lifetime in Galicia, because the claim must be brought by the right person.
What you must not do
Changing the lock, cutting off electricity or water, turning up with companions to «talk» or entering the property while the tenant occupies it are conducts the Criminal Code punishes. Article 172.1 defines coercion and expressly aggravates coercion aimed at preventing the lawful enjoyment of a dwelling, and entering another person’s home without consent is unlawful entry under article 202. A landlord who does that ends up reported to the police and, in addition, with a harder eviction, because the court now looks at him differently.
Nor should you accept partial payments without a receipt identifying them as payments on account of the total debt, agree verbally to reductions or deferrals, or hire companies offering «quick solutions» based on pressure. And do not let months go by waiting for the tenant to react, because each month is another instalment you will probably never collect.
What you can do today
Gather the lease and its annexes, the entry inventory if there was one, proof of the deposit and any guarantees, bank statements showing payments and missed payments, and your communications with the tenant, deleting none of them however uncomfortable. If community charges are passed on, ask the administrator for a certificate of the debt. Check whether you have rent-default insurance, because policies require the claim to be notified within a short period and usually condition cover on the notice and the claim being handled by the insurer or done as it directs. Check how many residential properties you own, to know whether you are a large holder. And do not sign any document the tenant proposes without someone who understands its implications reviewing it.
Prevention for the next lease
Almost all of the above is avoided before signing. Checking solvency with payslips, an employment contract or a tax return, requiring the legal deposit and the additional guarantee under article 36.5, adding a joint and several guarantor or a bank guarantee, setting up a direct debit for the rent and putting in writing which expenses the tenant assumes are clauses that cost little and change the outcome. Rent-default insurance covers an agreed number of monthly instalments and, depending on the policy, legal defence and damage, but it requires reading the exclusions and following the tenant-screening process the insurer imposes. The same caution applies to the tenant’s identity documents as to a holiday booking, and the checks I describe in this article on fake accommodation scams work in both directions.
What you risk by doing it yourself
A defective notice allows the tenant to cure and sends you back to the start with the lease alive. A claim missing the information required by article 439.6 LEC is not admitted. A badly documented partial payment becomes proof of an agreement that never existed. And an ill-timed entry into the flat makes you the accused. Each of those errors translates into months of rent you will not recover. At the firm we conduct the whole matter, prior notice, eviction claim with the rent claim joined, vulnerability incident if there is one, eviction and enforcement against the tenant and against the guarantor. You can call +34 677 841 007 or write through the contact page. Have to hand the lease, a list of the unpaid months and sums with their dates, the guarantor’s details if there is one, the notification address stated in the lease and, if you have already sent a notice, the copy and the acknowledgment of receipt.
Frequently asked questions
Can I claim against the tenant’s guarantor without waiting for the eviction to end?
Yes, if the guarantee was agreed as joint and several, which is the norm. Article 1831 of the Civil Code deprives the guarantor of the benefit of prior exhaustion of the debtor’s assets, so you can claim the debt from him directly, in the same claim as the tenant or separately, without first proving that the tenant has no assets. He answers for what he signed and for the term he signed, and an extension or amendment agreed without him may release him.
Is rent debt time-barred if the tenant has already left?
Rent and assimilated sums are time-barred five years after each due date under article 1966.3 of the Civil Code, and the period is interrupted by a documented out-of-court demand. If you already have a judgment, the right to enforce it lapses five years after it becomes final under article 518 LEC, and once enforcement has started it remains open until the debt is collected.
Can I enter the flat if the tenant has left without returning the keys?
Only with great caution. If he has told you he was leaving, the flat is empty and he ignores demands to return the keys, recovery is defensible and should be done with witnesses or a notarial record of the state of the property. If there is any doubt that he still occupies it, entering may be unlawful entry under article 202 of the Criminal Code, and the prudent course is to ask the court for possession. His belongings are not thrown out without judicial cover.
Is it worth suing, or is it better to negotiate his departure?
It depends on what you want to recover. If the tenant has a salary, a pension or assets, the claim with the rent claim joined is almost always worth it, because you recover the property and the debt is collected by attachment, even if slowly. If he is insolvent and all you care about is the property, offering to waive all or part of the debt in exchange for him leaving within a set period, an option the LEC itself allows in the claim, is usually faster and cheaper than chasing money that does not exist. What is never worth it is waiting months without serving notice or suing, because the debt grows and the chance of collecting it does not.