How has the new Housing Law affected the eviction procedure for large tenants?
Law 12/2023 of 24 May on the right to housing, which entered into force on 26 May 2023, established a series of measures to protect the constitutional right to housing, which materialised in the amendment of article 439.6 of the Civil Procedure Law, through the addition of paragraphs 6 and 7.
These regulate the admission of the lawsuit in special cases and, specifically, in cases of eviction brought by the owners of the rented property in the event of non-payment of rent or expiry of the legal term of the rental contract.
One of the differences with respect to the previous procedure is when it comes to filing an eviction lawsuit, depending on who files it, depending on whether they are a small or large landlord, which until now had been indifferent.
According to Article 3.k) of Law 12/2023, a large holder is a “natural or legal person who owns more than ten urban properties for residential use or a built-up area of more than 1,500 m2 for residential use, excluding in any case garages and storage rooms“.
Requirements for filing an eviction claim
Law 12/2023 introduces the obligation for any person who is going to file an eviction lawsuit (whether a large holder or not) to prove two issues:
- If the property constitutes the habitual residence of the occupant.
- Whether or not the claimant is a large holder (by providing a certificate from the Land Registry showing the list of properties in the claimant’s name).
Requirements for large tenants to bring an eviction action
And, with respect to large holders, some further pre-filing requirements:
In the event that the party seeking to evict actually falls within the legal definition of a large holder, he or she must prove at the time of filing the lawsuit whether or not the defendant is in a situation of economic vulnerability.
How can the large tenant prove this circumstance? The law itself provides an answer to this question by indicating that a document from the Social Services must be provided (always with the tenant’s consent) stating that the person “is not in a situation of economic vulnerability”.
Because, if the tenant is indeed considered economically vulnerable by the competent body, in order for the eviction claim to be admitted, the large landlord must prove that he or she has undergone a conciliation or mediation procedure with the tenant.
How to determine whether the respondent is in a situation of vulnerability in an eviction
Once the claim has been admitted for processing, if the property that the owner seeks to recover is the defendant’s habitual residence, then it will be examined whether the defendant is in a situation of vulnerability.
This will be done by informing the tenant that he/she can go to the competent Social Services to request a vulnerability report.
On the other hand, it is the court that directly notifies these services of the existence of eviction proceedings against the tenant in question and asks them to verify whether or not the tenant is in a situation of vulnerability.
If the social services consider that it is, the court may suspend the eviction proceedings for a maximum period of two months if the claimant is a natural person, or four months if the claimant is a legal person.
All of this, so that the measures that the Social Services have to establish (social rental alternatives, financial aid, etc.) can be adopted in the event that they consider that the respondent is in a situation of vulnerability.
Once the time limit has expired, the procedure shall continue.
How long do large-scale eviction proceedings take?
The average duration of large tenant eviction proceedings can now be between 10 and 18 months, including the procedures prior to the filing of the lawsuit.
The longer or shorter duration depends on different variables that are impossible to predict in advance, such as the speed with which the competent administration processes the file or the saturation of the court that subsequently processes the process.
What is certain is that the new regulation has reversed the burden of proof with regard to the situation of vulnerability, which must now be accredited by the lessor, and not by the lessee.
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